Fox v. NEW YORK CENTRAL RAILROAD COMPANY

• Decision Date: 15 June 1959
• Docket Number: No. 269,Docket 25274.,269
• Parties: Frank FOX, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

267 F.2d 532 (1959)

Frank FOX, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.

No. 269, Docket 25274.

United States Court of Appeals Second Circuit.

Argued May 5, 1959.

Decided June 15, 1959.

Hiscock, Cowie, Bruce, Lee & Mawhinney, Syracuse, N. Y. (Gerald H. Henley and Howard G. Munson, Syracuse, N. Y., of counsel), for defendant-appellant.

Muserlian & Furtch, Syracuse, N. Y. (Peter Muserlian and Theodore F. Furtch, Syracuse, N. Y., of counsel), for plaintiff-appellee.

Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and GALSTON, District Judge.

GALSTON, District Judge.

This is an appeal by the defendant from a judgment entered in the United States District Court for the Northern District of New York. The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, to recover damages for personal injuries sustained by the plaintiff. The verdict was in favor of the plaintiff in the sum of $25,000.

The defendant contends basically that there was no proof of any negligence on its part, and that the sole proximate cause of the accident was plaintiff's own voluntary act. Defendant also contends that there was error because the court refused a specific charge, and likewise error in the acceptance and rejection of evidence.

The complaint alleges that the plaintiff was employed by the defendant as a machinist and on the date in question, September 16, 1955, was injured in the engine house of the Railroad. On that day, in the course of his duties as a machinist, he was required to help check draft gear on a diesel locomotive of the defendant, and while so engaged sustained injury directly and proximately caused by the carelessness of the defendant. The answer of the defendant denies negligence and alleges that the accident and resulting injuries were caused or contributed to by the negligence of the plaintiff. The facts may be summarized as follows:

The engine involved was Diesel Engine 8283, which on the day of the accident was coupled to Diesel Engine 8284. These engines had been sent from the fuel plant of the engine house for the purpose of having a monthly inspection and of checking the engineman's report that there was slack between the units.

The draft gear portion of the pulling mechanism is located inside the engine and is visible only from underneath. The draft gear contains four springs, each of which weighs about forty pounds, and its purpose is to absorb the shock of coupling. The plaintiff, on the day of the accident and for thirty years prior thereto, was employed by the Railroad as a machinist. On September 16, the day of the accident, plaintiff reported for work at 7 a. m. and at about 10 a. m. was told by his foreman to perform a monthly inspection on the engines in question. This inspection required a check of the draft gear and in so doing he had to look under the car. He used a flash light and inserted a jimmy bar in an opening in the underneath side of the draft gear. The insertion of the jimmy bar led to a loud noise or explosion, and plaintiff was thrown to the concrete floor of the pit. Robert W. Mustard, also an employee of the Railroad, was the general foreman in the DeWitt diesel shop. As general foreman he was responsible for the entire operation of the shop. An inspection of the mechanism by Mustard led to his conclusion that one of the springs of the draft gear had, before the accident, hung up in a compressed position. In that position the draft gear does not operate as freely as it usually does. Mustard said that there was danger involved in checking any draft gear, for if stuck in a compressed position the gear is likely suddenly to snap back with great force to its proper position if touched with a bar, a finger, or the like. There is no proof that any notices had been posted in the engine house calling the attention of the employees to this type of danger. There was no proof that the knowledge of such danger was passed on to the plaintiff. Mustard himself had for ten or eleven years known of a condition such as springs slacking up in the draft gear, and of a dangerous situation existing if a bar were inserted in it.

Basically then the plaintiff charges failure of the defendant to inform him of the dangerous condition creating liability, and the jury found by its verdict that such negligence was a proximate cause of the injury to the plaintiff. Even assuming that there was contributory negligence on the part of the plaintiff, the jury's verdict must be accepted as a finding that the plaintiff's negligence, if any, was not the sole cause of the accident. The judge carefully charged the jury in respect to relevant sections of the Federal Employers' Liability Act, and there is ample authority in such circumstances as have been related for refusing to set the verdict of the jury aside.

The defendant claims reversible error in a refusal to charge "that under the facts in this case the defendant is not liable merely because there may have been a defect in the engine or draft gear, the engine having been in the shop for repairs." To that request the court said: "I will leave that under my general charge as to negligence. I will refuse to charge that."

The appellant's contention that a new trial should be granted because the court committed error in the acceptance and rejection of evidence is of no weight and without merit.

The judge had properly charged on the subject of negligence, and he might well have believed that had he charged in the terms requested it may have led the jury to conclude...