Healy v. New York, New Haven & Hartford R. Co.

• Decision Date: 26 September 1949
• Citation: 89 F. Supp. 614
• Parties: HEALY v. NEW YORK, NEW HAVEN & HARTFORD R. CO. et al.
• Court: U.S. District Court — Southern District of New York

89 F. Supp. 614

HEALY v. NEW YORK, NEW HAVEN & HARTFORD R. CO. et al.

United States District Court S. D. New York.

August 2, 1949.

Rehearing Denied September 26, 1949.

O'Neill, Higgins & Latto, New York City, Thomas J. O'Neill, John V. Higgins and Roland J. Tellier, New York City, of counsel, for plaintiff.

Edward R. Brumley, New York City, R. M. Peet, New York City, of counsel, for defendant New York, New Haven & Hartford R.R. Co.

Desmond T. Barry, New York City, G. Hunter Merritt, New York City, of counsel, for defendant The American Thread Co.

RYAN, District Judge.

Both defendants move pursuant to Section 1404(a), 28 U.S.C.A. to transfer this suit to the United States District Court for the District of Connecticut.

Jurisdiction over the Railroad Company is based on the Safety Appliance Act, 45 U.S.C.A. § 1, and the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; jurisdiction over The American Thread Company upon diverse citizenship.

Plaintiff, a resident of Connecticut, was in the employ of the defendant railroad. On January 2, 1947 while at work in Willimantic, Conn., his legs were crushed between a freight car and a building when the car jumped the track. The track, a siding adjacent to the loading platform of The American Thread Company mill was "owned, operated, maintained and controlled" by the railroad. Plaintiff's injury, it is alleged was caused by defendants' negligence.

The railroad has asserted two cross-claims against The American Thread Company, and it in turn has asserted a cross-claim against the railroad.

The New York, New Haven & Hartford Railroad Company is incorporated under the laws of the States of Massachusetts, Rhode Island and Connecticut and is authorized to do business in New York. It expects to call more than fourteen witnesses all residents of either Willimantic or Hartford, Conn. Some of these are employees of defendant railroad and others are not.

The American Thread Company is a New Jersey corporation authorized to do business in New York. It operates a large mill at Willimantic, Conn., the place of the accident. At trial this defendant expects that it will be necessary for it to produce at least twelve witnesses, employees of defendant and all residents of Connecticut.

It is stated in the affidavits submitted on this motion that both defendants will have to transport these witnesses and keep some of them here for the duration of the trial, whereas if the trial were had in Connecticut these witnesses could be easily reached by telephone at their place of employment, thus alleviating a substantial burden on defendants. Both anticipate nor is it contradicted that the trial will take at least five days.

Since plaintiff has not submitted proof of the identity and residence of the witnesses he intends to call it is fair to assume that they will be his fellow employees and residents of Connecticut.

If the case were transferred to Connecticut it would probably be reached for trial before January, 1950. If retained here it would be reached no sooner, probably later.

While defendants might have moved sooner for the relief now sought, there was a conflict of opinion as to the applicability of Section 1404 to claims of this nature, until Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, was decided by the Supreme Court, on May 31, 1949. The motions are timely made.

The convenience of the parties and witnesses in the interest of justice will best be served if this action is transferred to the District Court of Connecticut. Motions granted. Settle order.

On Motion for Rehearing

Plaintiff moves for re-argument of a motion previously made by defendants for an order transferring this action to the United States District Court for the District of Connecticut, under Sec. 1404(a), 28 U.S.C. A. The original motion was heard and argued on July 26, 1949 and opportunity for submission and further briefs and affidavits afforded all parties. The motion to transfer was granted. Re-argument of the motion was permitted because of the importance of the application, not only to this plaintiff, but to numerous railway employees similarly situated as plaintiffs in litigation pending in this court. Counsel was again heard and additional briefs and affidavits have been received and considered.

Plaintiff, a railroad brakeman employed by the defendant railroad, filed this action in this court on December 30, 1947 to recover damages for injuries alleged to have been received on January 2, 1947 through the negligence of defendants. It is alleged that both his legs had to be amputated as a result of the injuries sustained. Plaintiff is and was at the time a resident of Willimantic, Conn.

Plaintiff's injuries occurred while he was one of a switching crew employed by defendant railroad. The crew was switching a loaded freight car into the plant of the American Thread Company at Willimantic, and placing it upon a track adjacent to the platform of the cotton house of that company.

Defendant railroad is a Connecticut corporation with its principal office in New Haven. It maintains its law and claim departments in New York City and for the members of these departments personally it would be more convenient to try the action in this district. It is not questioned that the railroad carries on very substantial activities here.

The claims asserted did not arise out of the activities of either defendant in this district. They resulted entirely from the operation of the railroad crew at the local mill or plant siding of American Thread Company in Willimantic.

This action is not simply an Federal Employers' Liability Act suit. It involves as well a claim based on common law negligence asserted against a private industrial corporation, as well as the cross-claims between the corporate defendant and the railroad.

The issues raised by the pleadings revolve about (1) the alleged negligence of each of the defendants; (2) the possible contributory negligence of plaintiff; (3) the nature and extent of the injuries sustained by him; (4) plaintiff's pain and suffering, medical attention and hospital care he received and may in the future be obliged to undergo; (5) the amount of pecuniary damage he has sustained; and (6) in the event of plaintiff's recovery, the liability of defendants each to the other arising from the separate siding maintenance contract between them.

To establish his case, plaintiff's attorneys have frankly stated that they expect to call no witnesses who are residents or in business in this district, and that plaintiff need not call his fellow-employees (although they do not say that he will not call them), because "plaintiff was not rendered unconscious and can testify to the circumstances under which he was injured, which will (it is contended) establish the liability of the defendants." Plaintiff has not, on this motion, disclosed the identity of a single witness who does not reside in Willimantic or its vicinity; in fact, he has not disclosed either the identity or residence of any of his prospective witnesses.

Defendant railroad states that it expects to have present at the trial the following necessary witnesses:

1. the four members of the crew of the yard switcher with whom plaintiff was working when he was injured, to wit: conductor D. R. Connors, engineer F. A. Lowman, fireman A. Bjork and brakeman F. M. Garragher — all of whom live and work in Willimantic;

2. an entire section gang of six men from Willimantic;

3. station agent H. A. Blanchette of Willimantic;

4. three doctors who treated plaintiff, Drs. M. J. Reardon, E. J. Ottenheimer and J. G. Raymer of Willimantic;

5. P. J. Meyer of New Haven, photographer;

6. several representatives of the railroad operating department from Hartford;

7. meteorologist B. A. Brown of Storrs, Conn.

Counsel for defendant railroad also states that he expects the trial of this action will take at least five days, (which is not an unreasonable estimate); that he anticipates that the witnesses will have come to New York and remain several days, if not for the entire trial; that this will involve expense in subsistence and compensation for the employee witnesses; that the medical witnesses will be inconvenienced and their patients seriously affected.

Defendant American Thread Company states that at the trial it will be necessary for it to produce at least twelve witnesses, who are employees. It names seven of them, Edwin B. Shaw, President Agent and General Manager, Albert E. Welsh, Chief Engineer, E. B. Weeks, Michael Wrzesien, Fred R. Arson, Gene Bonin and George Anthony. This defendant further states that its plant at Willimantic employs seventeen hundred and normally...