Cuddy v. WESTERN MARYLAND RAILWAY

• Decision Date: 16 November 1962
• Docket Number: Civ. A. No. 7005.
• Citation: 210 F. Supp. 750
• Parties: Janet Marie CUDDY, Administratrix of the Estate of James R. Cuddy, Jr., Deceased, Plaintiff, v. WESTERN MARYLAND RAILWAY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

210 F. Supp. 750

Janet Marie CUDDY, Administratrix of the Estate of James R. Cuddy, Jr., Deceased, Plaintiff, v. WESTERN MARYLAND RAILWAY, Defendant.

Civ. A. No. 7005.

United States District Court M. D. Pennsylvania.

November 16, 1962.

Richter, Levy, Lord, Toll & Cavanaugh, Philadelphia, Pa., Martin H. Philip, Palmerton, Pa., for plaintiff.

Rowland Posey, Baltimore, Md., Anderson, Ports, May, Beers & Blakey, York, Pa., for defendant.

FOLLMER, District Judge.

This matter is before the Court on motion of defendant to dismiss the action because the Complaint fails to state a claim against defendant upon which relief can be granted under the Federal Employers' Liability Act.

The Complaint alleges that decedent, Cuddy, while in the employ of defendant as an engineman and while on the premises of defendant was shot and killed by one James T. Haney, likewise an employee of defendant. The Complaint further alleges that the death of said decedent was due to the negligence of defendant in "hiring and maintaining in its employ, a man known to be difficult to get along with, dangerous and vicious, and who was known to have a specific, notorious tendency to do bodily harm to others, all of which facts the defendant knew and did know for a long time prior the decedent's murder."

Defendant relies on Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922), which held that a railroad company is not liable under the Federal Employers' Liability Act for an injury inflicted by the wanton, wilful act of an employee, out of the course of his employment.

In Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947), the plaintiff, a 22 year old female telegraph operator, working a night shift, in a one-room frame building, was assaulted by a non-employee of defendant. The victim answered a knock at the door, thinking that some of defendant's employees were seeking admission. She opened the door, and before she could close it a man entered and made the assault. The Court held that the above allegations in the Complaint, if supported by evidence, would warrant submission to a jury.

In Shepard v. New York, New Haven & Hartford R. Co., 2 Cir., 300 F.2d 129 (1962), a railroad employee was shot by a fellow employee. The Court held that the jury could conclude that the railroad, which knew of fellow employee's prior stay at a mental hospital, had negligently rehired him without a fully adequate report on his condition and had failed to act when his conduct after reemployment was reported to it, and that such negligence...