Eichhorn v. Central R.R. of New Jersey

• Citation: 185 F. 624
• Parties: EICHHORN v. CENTRAL R.R. OF NEW JERSEY.
• Decision Date: 03 March 1911
• Court: U.S. District Court — Southern District of New York

185 F. 624

EICHHORN v. CENTRAL R.R. OF NEW JERSEY.

United States Circuit Court, S.D. New York.

March 3, 1911

Sydney A. Syme (L. F. Fish, of counsel), for the plaintiff.

De Forest Bros. (Robert Thorne, of counsel), for defendant.

RAY District Judge.

The defendant is a railroad corporation of the state of New Jersey. Prior to and on the 23d day of October, 1909, it occupied and used the westerly portion of the first and second floors of the Newark Warehouse in Newark, N.J., as a freight depot or place for loading and unloading its freight. Railroad tracks ran into this building at or near the southeast corner of the second story or floor, and diverged to the west. The building was quite large, and in the second story of the westerly end of the building there were three platforms connecting with a fourth platform. This fourth platform extended substantially the entire width of the building from north to south. Platform No. 1 extended from this fourth platform easterly, there being a railroad track on its northerly side. Platform No. 2 extended easterly from the fourth platform, and between it and platform No. 1 there were two railroad tracks. Platform No. 3 also extended easterly from this fourth platform, and between it and platform No. 2 there were two or more railroad tracks. These tracks between the platforms mentioned connected with the main tracks leading into the building. Loaded cars could be run in through the large door near the southeast corner of the building on the main track or tracks onto these other tracks between and by the side of platforms 1, 2, and 3. The tops of these platforms were substantially on a level with the platforms of the freight cars. The cars were run alongside the platforms and unloaded by means of trucks or otherwise, and what freight was not left on the platforms temporarily was taken to elevators and lowered to the floor below.

There were two elevators on each of the platforms, Nos. 1, 2, and 3. These elevators on each platform were located one near its westerly end and the other near its easterly end. Elevator 1 was near the westerly end of platform 1; elevator 2 near the westerly end of platform 2; elevator 3 near the westerly end of platform 3; elevator 4 near the easterly end of platform 3; elevator 5 near the easterly end of platform 2; and elevator 6 was near the easterly end of platform 1. This large room was lighted by means of electric lights depending from the ceiling; there being four or five lights at different points above each of the platforms 1, 2, and 3. There was a washroom at the westerly end of platform 1 at or near the northwest corner of this building on this floor. There was a ladder on the southerly side of each of these platforms not far from the easterly end, by means of which persons could go up from the tracks and spaces between and around them onto the platforms. On platform No. 1 Thomas or Tommy Warner, foreman of that floor, had a desk with an electric light at the desk. These elevator shafts were closed or solidly constructed on the easterly and southerly sides. They were open on the northerly and westerly sides, except when the elevator itself moving away from the platform automatically closed such openings by means of two solid doors at each opening, one moving up from the level of the platform and the other down from above. When the floor of the elevator arrived at the level of the platform, the man operating the elevator could open these doors by shoving down on the one and up on the other. When the elevator moved away either up or down, the automatic device closed these doors. There was an arrangement by which these doors could be opened from the outside; that is, from the platform. This was the normal construction and the normal mode of operation. It is seen that if for any reason the automatic devices failed to work and close the doors into the elevator shaft when the elevator itself moved away, up or down, that these openings into the elevator shaft would be left open, and that a person going in or stepping in would be precipitated to the floor below.

There is no claim that the lights were insufficient in number or brilliancy when turned on, or that the platforms were improperly constructed or out of repair. There was a switchboard on platform 2 east of elevator No. 5. The lights above all the platforms could be turned off at one time except that at Warner's desk, or the lights above each platform could be turned off without affecting the others. From the big door or doors at the southeast corner of the building where the cars came in a person could walk on the tracks or by the side of the tracks to platform No. 1, the most northerly one, or to platform No. 2, or to platform No 3, then up the ladder and along the platform to the platform No. 4 (the one running north and south) and along it to the washroom, near which was a stairway leading out of the building, and this seems to have been the usual mode of egress after work had ceased. Of course, persons could go to the lower floor on the elevators before they ceased running. Work ceased at or a few minutes before 6 o'clock p.m., except when men worked overtime. There were two gangs of truckers, three or four men in each gang, a checker with each.

The duty of the checker was to note in a book the freight moved. The truckers, of course, moved the freight. There were at least two elevator men whose duty it was to operate the elevators. While this elevator No. 5, where the accident happened, was constructed and arranged to run to the top of the building, it ran to this second floor only, except on rare occasions. It was operated and controlled by the Railroad Company. It was kept in repair by the Warehouse Company, the owner of the building, but there is no evidence that the employes of the Railroad Company knew this fact.

From these facts, it is self-evident that in the daytime, or when the platforms were lighted up by means of those electric lights suspended about 15 feet above the platforms, a person walking along on the platforms would be able to see, if he used his senses, the openings into the elevator shafts, or any one of them, if near it, and would be on his guard except when at work. As the accident happened at elevator No. 5, the easterly one on platform No. 2, we will concern ourselves with that more especially. At 6 p.m. on the 23d day of October, 1909, or a few minutes before, work ceased on this floor, so far as the Railroad Company was concerned. The plaintiff, William H. Eichhorn, was a checker in the employ of the defendant company and had been at work on platform No. 2 and in the cars at that platform. When work stopped, he proceeded, as was his duty, to Warner's desk on platform No. 1 to turn in his checking sheets. While there one of the men, Andy Spengler, came to the desk and said, in substance, there was not help enough to close the big door when the cars came into the building on this floor, and the plaintiff said to Jack Steib, an employe, who was standing there, 'Come, Jack, we will go over and give them a hand to close the doors. ' Steib said, 'My men is over there, where is yours? ' Plaintiff replied, 'When I left, I told them to go over. ' Steib declined to go, as he did not get pay for overtime, but plaintiff said, 'I will go over and see who is missing from my gang. I ain't going to have Larry give me any hell. ' And then Steib said, 'All right, go over and give them a hand. It is only a minute's work. ' The plaintiff says this was in the presence of Warner, the foreman, from whom they took orders when 'Larry' Wefferling, the superintendent, was not present, and that thereupon he proceeded to the big door in question to aid in closing it, or see that his gang was there and doing their duty. The plaintiff also testified:

'Q. Had Larry (referring to the superintendent) before this given you any orders to close them (the big doors), yes or no? A. Yes, sir.

'Q. State what those orders were, and when they were given you by Larry? A. About the 1st of October, around that time. I do not know the exact date, just a few weeks previous to that accident, the doors were left open. The next morning Larry called me out of my car over to where the other checker, Jack Steib, was, called us together and says: 'I want the checkers to see that all their men go over to close those doors at night, and not have some of them run away, so that the doors are left open because there are not men enough there, and to report to me all men that don't go over there and go home without going over to close the doors."

If this was true and the jury so found, then, under the circumstances, it was in the line of the plaintiff's duty to see to it that his gang were at the big door to aid in closing it, and it was his duty to go and see and report if any were absent.

He says he went to the washroom to see if any of his men were there then along the platform No. 4 to No. 2, then along No. 2 and down to the tracks, and out to the big doors, which were about 100 feet from the easterly end of platform No. 2; that when he got there the door was closed, some men being there still; and that he and others then left to return to the place of egress at or near the washroom, and that he went back to platform No. 2 up the ladder, and started westerly on that platform towards platform No. 4. He says that the entire room, all the platforms, were lighted up during all this time, but that just about the time he started westerly on platform No. 2, after having gained it and taken two or three steps, the lights went out; that he called out, 'What is the matter with the lights?' but got no answer, and then proceeded westerly on platform No. 2; that to get by this elevator No. 5 on that platform he turned to the...