Delaware Co v. Koske

Decision Date18 February 1929
Docket NumberNo. 219,219
Citation279 U.S. 7,73 L.Ed. 578,49 S.Ct. 202
CourtU.S. Supreme Court
PartiesDELAWARE, L. & W. R. CO. v. KOSKE

Messrs. Walter J. Larrabee, of New York City, and Jacob G. Grossberg, of Chicago, Ill., for petitioner.

Mr. I. Faerber Goldenhorn, of New York City, for respondent.

Mr. Justice BUTLER delivered the opinion of the Court.

Respondent sued petitioner under the Federal Employers' Liability Act (45 USCA §§ 51-59) in the circuit court of Hudson county, New Jersey, to recover damages for injuries sustained by him while in the service of petitioner. At the close of the evidence, defendant moved the court to direct a verdict in its favor on the grounds that the evidence was not sufficient to warrant a finding of negligence on the part of defendant and that it conclusively appeared that plaintiff assumed the risk of the accident and injury complained of. The motion was denied, there was a verdict for plaintiff, and the judgment entered thereon was affirmed by the highest court of the state.

Plaintiff was employed in defendant's roundhouse and coal chute yard at Hoboken. The complaint alleged that defendant negligently 'permitted an open, uncovered and unlighted and dangerous hole to exist between certain parts of said tracks,' that plaintiff was there employed at 4 o'clock in the morning of June 4, 1925, and 'while alighting from an engine in the course of his said employment fell into said opening,' and was injured.

Plaintiff's work was to put sand into the boxes on engines and to turn switches for them. During 11 years he worked nights from 9 o'clock in the evening until 7 in the morning and for one year, about 5 years before the accident, he worked in the daytime. He was familiar with the tracks and ground in the yard. Throughout the period of his employment, the yard was drained by a shallow open ditch or trench. This depression varied in depth from 8 to 11 inches and in width from 8 to 24 inches. It passed between ties under the tracks and, at a place not far from the coal chute, it extended a short distance longitudinally between the tracks. During all the time that plaintiff worked there the drain or ditch was in the same place and was maintained in the same condition as it was at the time of the accident.

The case was tried, the jury charged, and the judgment given and affirmed upon the understanding that the place where plaintiff fell was a part of the above-mentioned longitudinal section of the drain. Nevertheless plaintiff here suggests that it is not certain that the hole com- plained of was a part of the trench. But, as it was in respect of the ditch or drain that defendant was found negligent, and plaintiff was held not to have assumed the risk, and as that only was considered by the lower courts, the judgment cannot be affirmed on the theory that plaintiff was not injured there, but at another place.

Three or four days after the accident, plaintiff went to the yard to get his pay and then told the coal chute foreman of the accident, saying he 'fell down in the ditch somewhere off an engine.' He also indicated to the roundhouse foreman, not the exact spot, but the vicinity of the place where he claimed to have been injured. The part of the yard so pointed out includes the section of the drain here in question.

In his testimony plaintiff described the accident in substance as follows: He went upon an engine standing near the roundhouse and rode it to a point about 60 feet from the coal chute, where it stopped near a switch he intended to turn. The engine step was between 3 and 4 feet above the general level of the ground between the tracks. He said he jumped from the engine and 'just struck a certain hole'; that there was coal or stone in the hole; 'there was something there very hard'; that he immediately became unconscious, and did not know what happened, or who took him 'out of that hole, or how they took' him. He also said that he did not know about the hole before he jumped; that it was so dark that he could not see the hole; that he thought everything was level, and did not expect the hole to be in that place. There is nothing to support a finding that there was then any hole or depression in the yard, other than the open drain.

The Federal Employers' Liability Act permits recovery upon the basis of...

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