Dunn v. New York, N.H. & H.R. Co.

• Decision Date: 03 April 1901
• Docket Number: 112.
• Citation: 107 F. 666
• Parties: DUNN v. NEW YORK, N.H. & H.R. CO.
• Court: U.S. Court of Appeals — Second Circuit

107 F. 666

DUNN v. NEW YORK, N.H. & H.R. CO.

No. 112.

United States Court of Appeals, Second Circuit.

April 3, 1901

A brakeman was set to work in switching with a road engine regularly used for that purpose, but unprovided with any special handhold in front, necessary to his work. No particular projection was used, and the use of any particular one was not forbidden. The brakeman used the figure plate which was adapted thereto, and most convenient for a man of his size. It had been loose for 24 hours, but was apparently all right when he took hold of it. It gave way, however, and he was thrown under the cowcatcher and injured. Held, that under such evidence it was error to nonsuit plaintiff in an action for damages, as enough was shown to require some proof of inspection by the company to overcome the presumption of negligence.

This cause comes here upon a writ of error to review a judgment dismissing the complaint upon the merits at the close of plaintiff's case. The action was brought to recover damages for injuries received while in the employ of defendant as a brakeman upon one of its trains at or near Union City, Conn. The plaintiff, at the time he was injured was engaged to uncoupling freight cars from the forward end of an engine, which operation necessitated his pulling a pin with one hand, and with the other grasping some part of the locomotive to steady himself. He grasped the round plate fastened in the middle of the forward end of the boiler, and known as the 'figure plate,' on which are the figures indicating the number of the locomotive. Upon the occasion in question this plate was loose, so that it turned when the plaintiff applied pressure, and, support being thus suddenly and unexpectedly withdrawn, he was thrown under the pilot, or cowcatcher, of the engine, and received the injuries for which this action is brought. There was evidence in the case showing that, on the day before, the figures were turned so as to make it obvious that the plate itself had been turned. On the day of the accident, as plaintiff testifies, when he looked at the figure plate, the figures were all right; that is, in a horizontal position

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

The record contains no indication as to the grounds on which the plaintiff was nonsuited. The burden, of course, rested on the plaintiff to show a default on the part of defendant in respect of some of the duties imposed upon it. Plaintiff's contention is that there was a failure properly to inspect the figure plate. Plaintiff's evidence on that point was extremely slight, but was sufficient to require the defendant to show what sort of inspection, if any, it gave to the part in question. The evidence tended to show that it had been loose for 24 hours. Concededly, it was insufficient to support plaintiff on the day of the accident,-- facts sufficient to put defendant to the proof of the methods it employed to guard against the occurrence of such an accident. When such proof is in, it may be apparent that, under all the circumstances, defendant acted as a reasonably prudent master would have done in looking after the safety of the place where and the appliances with which its servant...