Hartel v. Long Island Rail Road Company
| Decision Date | 28 March 1973 |
| Docket Number | Docket 72-1452.,No. 104,104 |
| Citation | 476 F.2d 462 |
| Parties | Audrey S. HARTEL, Plaintiff-Appellant, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Arnold B. Elkind, New York City, for plaintiff-appellant.
George M. Onken, Jamaica, N. Y. (Jay E. Gerber, and Paul C. Saunders, New York City, of counsel), for defendant-appellee.
Before MOORE, HAYS and MULLIGAN, Circuit Judges.
Some time between 6:30 and 7:00 A. M. on Sunday, February 18, 1968, John Hartel, a ticket agent for the Long Island Rail Road Company (LIRR) arrived at the Mineola, Long Island, railroad station to open the ticket office. He entered the waiting room to open the steel shutter covering the ticket window. While so doing, one of three men with a gun stepped up behind him and announced a hold-up. When Hartel attempted to flee, he was shot in the back and killed.1
Plaintiff-appellant in this action, Hartel's widow, sought to recover damages from her husband's employer in her own right and as administratrix of her husband's estate under the Federal Employers' Liability Act (FELA) 45 U.S.C. § 51 et seq. The trial court found that plaintiff had "introduced no evidence showing that defendant should have reasonably foreseen the possibility of a holdup at the Mineola Station"2 and granted defendant's motion for a directed verdict. From the judgment dismissing the complaint, plaintiff appeals. In addition to charging error in directing a verdict in favor of the defendant, plaintiff asserts that four proffered items of evidence were improperly excluded.
An essential ingredient in plaintiff's case was that she establish that the LIRR should have foreseen that a criminal attack (robbery and murder) might be made upon its ticket agent at the Mineola station.
In reviewing this directed verdict this Court must view the evidence and all inferences therefrom in the light most favorable to the plaintiff. O'Connor v. Pennsylvania R. R., 308 F. 2d 911 (2d Cir. 1962). We have done this, and affirm the decision of the court below.
The FELA provides:
Every common carrier by railroad * * * shall be liable in damages to any person * * * or, in case of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *. 45 U.S.C. § 51.
To establish her case plaintiff had to show that the danger to her husband from armed criminals was, or should have been foreseen by the defendant. Once this was shown, a further showing that defendant was negligent in whole or in part in failing to minimize this danger would have been required.
In attempting to demonstrate the foreseeability of the criminal assault which caused her husband's death, plaintiff offered to prove that in the preceding four years there had been ten robberies or attempted robberies at defendant's stations located between 4.7 and 29.8 miles from the Mineola station.3 Two of these had occurred in the month immediately preceding the Mineola holdup. Judge Levet refused to permit this proof. Plaintiff here argues that evidence of prior holdups should have been admitted to show that the LIRR did have knowledge of the dangers ticket agents faced. In each of the cases cited by plaintiff to support this position, however, the courts have specifically limited evidence of prior incidents to those occurring at the exact locus of the incident giving rise to the litigation. In addition, they have required that the circumstances under which such incidents occurred must have been substantially the same as those in the action brought. Thus, in Cahill v. New York, N. H. & H. R. R., 236 F.2d 410, 411 (2d Cir. 1956), the case most heavily relied upon by plaintiff, a listing of the collisions which had occurred at a particular intersection was admitted to show the railroad's knowledge of the danger of such incidents at that place. In the instant case no prior robbery had occurred at the Mineola station. Therefore, Judge Levet was correct in excluding the evidence of prior robberies. See also Plough v. Baltimore & O. R. R., 164 F.2d 254, 256 (2d Cir. 1947).
Plaintiff also sought to introduce testimony concerning a conversation between herself and a staff attorney of the LIRR named Donnelly. Just before Hartel's funeral Donnelly, who had been Hartel's friend, told plaintiff that her husband had once mentioned to him that he was afraid of working at the Mineola station. Direct testimony by Donnelly was not offered. In addition, it was not shown that Donnelly was authorized to receive notice of dangerous working conditions or that, by this conversation, Hartel had intended to give the LIRR such notice. Under these circumstances it was not error for Judge Levet to exclude such hearsay testimony. Schilling v. Delaware & H. R. R., 114 F. 2d 69, 71 (2d Cir. 1940).
By attempting to introduce correspondence and testimony as to conversations between the ticket agents' union and the LIRR, which related to requests for increased protection for ticket clerks from the dangers of armed robbery, plaintiff sought to demonstrate defendant's awareness of the risks its employees faced. When it was determined that neither this correspondence nor the union leader's conversations with railroad management made specific reference to the Mineola station, this evidence was excluded.
Plaintiff made no offer of evidence which would have shown that there was any unusual danger at the Mineola station. To be admissible to show the foreseeability of a criminal assault upon an employee for which an employer could be held liable under the FELA, we think that the evidence must be such that it did in fact call, or should have called, to the employer's attention the special dangers found at a particular location.
In this regard the case of Inman v. Baltimore & O. R.R., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959) is instructive. There an intoxicated motorist was violating five traffic statutes when he ran down a train flagman. The Supreme Court affirmed the decision of the Ohio Court of Appeals reversing a jury verdict for plaintiff. In his concurring opinion Justice Whittaker emphasized the complete failure of the evidence to show that the negligence of the railroad had contributed in any way to the flagman's injury.
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