Hayes v. New York Central Railroad Co.

• Citation: 311 F.2d 198
• Decision Date: 18 December 1962
• Docket Number: No. 165,Docket 27555.,165
• Parties: Thomas HAYES, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD CO., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

311 F.2d 198 (1962)

Thomas HAYES, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD CO., Defendant-Appellant.

No. 165, Docket 27555.

United States Court of Appeals Second Circuit.

Argued December 6, 1962.

Decided December 18, 1962.

Gerald E. Dwyer, New York City (Jerome H. Shapiro and Edward J. Murphy, New York City, of counsel), for appellant.

Bromsen & Gammerman, New York City (Melvin A. Cohen, New York City, of counsel), for appellee.

Before SWAN, FRIENDLY and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

The defendant appeals from an adverse judgment in the sum of $22,500 entered upon a jury verdict in an action brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. It contends that there was no proof of negligence on its part which was the proximate cause of plaintiff's injuries, and that even if there was, the proof of plaintiff's contributory negligence was so overwhelming as to render the verdict excessive. We disagree and affirm the judgment of the District Court.

The plaintiff, Thomas Hayes, was given temporary employment by the New York Central Railroad for the purpose of clearing snow from switches in the Weehawken, New Jersey railroad yards. He was hired on February 16, 1958 at 1 p. m. during the course of a severe snowstorm. The temperatures that day were low and the winds gusty. The plaintiff, who had left his home with the intention of visiting a friend, but who learned of and seized the opportunity to earn some extra money working for the railroad, was clad only in an overcoat, light sweater, low shoes, and rubbers. Thus attired, he was ordered by one of the defendant's employees to report to the foreman who was preparing to take other men into the yard for the purpose of shoveling snow. Apparently dubious about the sufficiency of his clothing to withstand the weather during the arduous hours that lay ahead, the plaintiff requested permission, before reporting to the foreman, to go next door to the Union Drydock and Repair Company (where the plaintiff had been employed some months before) to secure a pair of boots. In the plaintiff's words, the hiring employee "leaned over the desk and he looked at my feet, and he said, `No, you are all right.' He said, `You will have to go downstairs because we are short of men.'"

Plaintiff commenced his work and, standing in one to two feet of snow, he shoveled from 1 p. m. on February 16 until — with the exception of four breaks lasting 45 minutes to an hour — 3:45 p. m. the next day, some 27 hours later. His first break was spent eating dinner; his second break, at 2:30 a. m. on February 17, was devoted to sandwiches and coffee. At that morning break, plaintiff observed many of his colleagues changing their shoes and socks. Although he noted that his feet were quite wet above his low shoes, he had no change available and could not follow suit. For his third break, later in the morning of the second day and some 16½ hours after starting work, the plaintiff, undaunted, walked a mile to a diner for breakfast, and returned there for lunch that afternoon, shortly before stopping work. Throughout these 27 hours, the weather was bitter. For 16 of those hours, snow fell. During 17 hours, the temperature ranged from 6° to 10°, and for the remaining 10 hours, from 10° to 22°; wind velocity went as high as 49 miles per hour. Although plaintiff admittedly could have terminated his temporary employment, and might have been expected to know enough to "come in out of the snow," he chose to work on under these conditions. As a result, plaintiff learned some days later that his feet had become frostbitten — a condition of which one does not ordinarily become aware until after it has occurred because of its numbing effect in the incipient stages.

Plaintiff was hospitalized, underwent a serious and protracted operation, suffered considerable pain, and now claims a permanent disability and impairment of the normal use of his feet and legs. Upon proof of these facts and of medical and hospital expenses of some $3,769.85, the jury returned a verdict of $22,500.

We should state, first, the principles of law which guide us in actions brought under the Federal Employers' Liability Act. We know...