Healey v. New York, O. & WR Co.

• Decision Date: 04 November 1935
• Docket Number: No. 34.,34.
• Parties: HEALEY v. NEW YORK, O. & W. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

79 F.2d 542 (1935)

HEALEY v. NEW YORK, O. & W. R. CO.

No. 34.

Circuit Court of Appeals, Second Circuit.

November 4, 1935.

Watts, Oakes & Bright, of Middletown, N. Y. (Abram F. Servin, of Middletown, N. Y., of counsel), for appellant.

T. J. Gillen, of Brooklyn, N. Y., and A. L. Casey, of Scranton, Pa. (William G. Walsh, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

Appellee's intestate, employed by the appellant as a brakeman, met an accidental death on March 20, 1931, while at work shifting cars on a track known as the "Riverside Mine Run," extending from Mayfield, Pa., to the Ontario & Riverside breakers south thereof. This line is used solely for making up trains of coal which are loaded at these respective breakers; also for storing coal cars while awaiting loading or transportation. He fell from a coal car on which he was riding, engaged in a switching operation, at 10 o'clock at night. Snow was falling. The crew, consisting of an engineer, conductor, foreman, and the decedent, started from Mayfield yard with an engine and cars. When they arrived at these siding tracks, they engaged in switching operations shifting both empty and loaded cars. After several switching movements, the engine passed the southerly end of a switch, and appellee's intestate stepped off the locomotive on which he was riding and threw the switch. The engine moved ahead to the loaded car, which was some two or three car lengths away, and decedent made the coupling connecting the air hose and angle cock. The engineer then turned out the headlight and decedent went to the front end of the loaded car with his lantern. When he was climbing on the car, the engineer says he put his hand on the ladder and his foot on the step and gave the engineer the customary signal to go ahead by raising and lowering his lantern. After climbing on the car, he went around the front end and the engineer started the engine. After the engineer started, he could see the reflection of a light there, although previously there had been no light on the front of the car. The engine continued pushing the car for a distance of 1,600 feet until the loaded cars had been left on the northerly end of the switch, when the engineer received a signal from another brakeman standing by the loaded cars. As the car that was being pushed approached the loaded cars, the lantern which decedent had had was lighted and standing on the brake platform near the center of the car. Healey was found lying between the rails dead, about 100 feet from where this movement had started. His coat was drawn over his head, from which it is argued that he was dragged by some underigging of the car.

It is argued that he must have fallen from the train after placing his lantern where it was later observed at some time after the engine had started up. However, there was no evidence to show what caused his fall, and it must have occurred after he had taken his position at the front end of the car and after he had placed his lantern in the middle of the front platform.

The negligent act submitted to the jury was the failure of the engineer "to comply with the rules of the defendant for the proper and safe operation of the locomotive and the car, which rules require that where a train is being pushed by a locomotive, the trainman or flagman is required to be in a...