Hatton v. New York, N.H. & H.R. Co.
| Decision Date | 15 November 1919 |
| Docket Number | 1415. |
| Parties | HATTON v. NEW YORK, N.H. & H.R. CO. |
| Court | U.S. Court of Appeals — First Circuit |
J Lyman Gray, of Springfield, Mass. (Morrisey & Gray, of Westfield, Mass., on the brief), for plaintiff in error.
John L Hall, of Boston, Mass., for defendant in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
This is an action under the federal Employers' Liability Act of April 22, 1908 (chapter 149, 35 Stat.at Large, 65), as amended by the Act of April 5, 1910 (chapter 143, 36 Stat.at Large, 291), by an administratrix to recover for injuries to and the death of her intestate. In the court below a verdict was directed for the defendant, and the plaintiff excepted.
The declaration contains four counts. In the first two counts the negligence charged is that--
'of the officers, agents or employes of said carrier (the defendant) in allowing a barrel of brass to fall so that the plaintiff's intestate was struck upon the head and his skull fractured.'
In the third and fourth counts the intestate's injury is alleged to have been caused by--
'a defect or insufficiency, due to the defendant's negligence, in its cars, machinery, appliances, tools, works or other equipment, causing a barrel of brass to fall so that the plaintiff's intestate was struck upon the head and his skull fractured.'
In answer to a motion of the defendant to specify more definitely the particulars in which the plaintiff claimed that it was negligent, the plaintiff specified as follows:
'That the officers, agents or employes of the defendant were negligent in allowing a barrel of brass to fall upon the plaintiff's intestate by reason of defects and insufficiencies in the defendant's cars, machinery appliances, tools, works or other equipment'
-- in other words, that she relied on the charge of negligence specified in the third and fourth counts.
The defenses set up were a general denial, contributory negligence and assumption of risk; and the questions presented are (1) whether there was any evidence bearing upon the charge specified from which it could reasonably be found that the defendant was negligent; and, if so, (2) whether any reasonable conclusion could be drawn from the evidence other than that the plaintiff's interest assumed the risk.
The plaintiff's intestate, Charles J. Hatton, received the injury here complained of on December 4, 1916, while employed by the defendant upon one of its freight trains operating between New Haven, in the state of Connecticut, and Westfield, in the state of Massachusetts. When his injury was received, he and three other trainmen were engaged in removing a barrel of brass weighing some 1,400 or 1,500 pounds from a freight car to a station platform by means of a gangplank. At the time of the accident the three fellow employes were on the freight car pushing the barrel of brass and Hatton was standing on the gangplank pulling on the barrel, and while thus engaged the end of the gangplank resting upon the car was pushed or pulled off the car and tipped, causing the barrel to fall between the car and the platform and throwing Hatton upon the plank or platform, causing the injury to his head, from which he, a week later died.
There was no evidence that the...
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