Deputla v. Pa. R. Co.

• Decision Date: 28 April 1933
• Docket Number: No. 167.,167.
• Citation: 166 A. 87
• Parties: DEPUTLA v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

166 A. 87

DEPUTLA

v. PENNSYLVANIA R. CO.

No. 167.

Court of Errors and Appeals of New Jersey.

April 28, 1933.

Appeal from Supreme Court.

Action by Frank A. Deputla against the Pennsylvania Railroad Company. Judgment for plaintiff was affirmed, and defendant appeals.

Affirmed.

On appeal from the Supreme Court, in which the following Per Curiam was filed:

"The action was brought under the Federal Employers' Liability Act (45 U. S. Cede Annotated, § 51 et seq.), because of injuries sustained by plaintiff on October 15, 1930, while employed by defendant in interstate commerce, as a brakeman, or 'Car cutter,' at the Greenville Yards, Jersey City. He was struck by a brake-stick which fell from the hands of a fellow employee. It appears that the plaintiff, the conductor, and another brakeman were engaged in their usual duties in shifting cars. Plaintiff was standing ready to pull the pin in order to uncouple some cars, when the brakeman, who was climbing up on one of the cars to give a signal, dropped his brake-stick, striking the plaintiff and causing the injuries complained of.

"The failure to nonsuit and direct a verdict for the defendant seem the only question before us by appropriate exception.

"The act in question does not define negligence, so it has been repeatedly held that the principles of the common law control. 45 U. S. Code Annotated, p. 179. The carrier is liable for the negligence of any of its employees. Grijnuk v. McAdoo, 95 N. J. Law, 256, 113 A. 920. The doctrine of res ipsa loquitur applies to cases arising under the statutes, 45 U. S. Code Annotated, p. 210. The dropping of an object raises a presumption of lack of care in the person who drops the same. Sheridan v. Foley, 58 N. J. Law, 230, 33 A. 484; Higgins v. Goerke-Krich Co., 91 N. J. Law, 464,103 A. 37.

"The brakeman's stick would not have fallen but for some act or failure to act on his part. The fact that it was raining, that he slipped when going up the side of the car, that he wores gloves and carried a lantern were all circumstances for the jury to consider in determining whether he exercised due care for the safety of a fellow workman whom he knew was standing below ready to receive his signal.

"'In actions under the Federal Act the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant which the injured party could not have foreseen or expected is the sole, direct and immediate cause of the injury. To hold otherwise...