Hines v. Jasko

• Decision Date: 23 June 1920
• Docket Number: 2530.
• Citation: Hines v. Jasko, 266 F. 336 (3rd Cir. 1920)
• Parties: HINES, Director General of Railroads, v. JASKO.
• Court: U.S. Court of Appeals — Third Circuit

266 F. 336

HINES, Director General of Railroads, v. JASKO.

No. 2530.

United States Court of Appeals, Third Circuit.

June 23, 1920

Frederic B. Scott, of New York City, for plaintiff in error.

Frank M. Hardenbrook and Charles M. Egan, both of Jersey City N.J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and HAIGHT, Circuit Judges.

BUFFINGTON Circuit Judge.

In this case Palina Jasko, administratrix of Joseph Jasko, brought suit and recovered a verdict against the Director General operating the Delaware, Lackawanna & Western Railroad. The cause of action was alleged negligence in operating said railroad, which caused the death of Joseph Jasko, an employe. On entry of judgment on such verdict, the defendant sued out this writ of error.

The facts in the case were that decedent was employed as a car inspector in the Hoboken freight classification yards of said railroad. He was familiar with such work and its dangers having been engaged in it for some years. On the evening of his death, he in company with Schwartz, a fellow workman, was inspecting and repairing a freight car laden with interstate freight, which stood on freight track 24. In making such repairs he had occasion to use a wrench and bolt, which were in a toolhouse which stood on the farther side of track 26 and about a car length to the eastward. To get these articles, Jasko left his companion, Schwartz, standing by the car on track 24, crossed over track 25, which was empty, and passed over track 26, through an opening about a yard wide between two cars standing on said track 26. This was the last seen of him alive. He evidently walked eastward along the side of track 26, got the wrench and bolt from the toolhouse, and was returning the same way across the opening between the two cars on track 26. Just then Schwartz, his companion, heard the noise of the two cars coming together and coupling, and a cry from Jasko. Crossing over, Schwartz found Jasko, with his lantern, the wrench, and the bolt, on the ground, with injuries which resulted in his death.

The alleged negligence of the defendant, as stated in the eighth paragraph of the amended complaint, was:

'That at said time and place the said railroad company, by its agents, servants, and employes, and without regard for the safety of plaintiff's intestate, negligently caused certain other cars, without any engine attached thereto, to be shunted or kicked against the standing cars between which plaintiff's intestate was compelled to pass as aforesaid, and to violently collide with and strike the same, and without any bell, whistle, or signal of any kind being given to plaintiff's intestate of the movement of said cars, and at which time the plaintiff's intestate was in the act of passing between the said cars as aforesaid.'

The further cause in the second amendment, or clause 8 1/2, to wit:

'That at said time and place the defendant omitted its aforesaid duties, in that it neglected its custom and duty to have a man ride on the foremost end of the car so shunted or kicked as aforesaid, to control it with hand brakes, and prevent it from striking with unusual and unnecessary force the car with which it came in contact.'

At the conclusion of the plaintiff's testimony, a motion for a nonsuit was made, the denial of which motion is now, inter alia, assigned for error. Referring, first, to the question as to what way or ways were open for Jasko to go from his car to the toolhouse, the facts are these:

Directly opposite where he and Schwartz were was the opening, about a yard wide, through which he passed and was killed. To the westward there was no opening in the cars on the track for ten car lengths. To the eastward of the opening, either two or three cars stood. Then came another opening of about a yard or a yard and a half, to the east of which stood a single car. Beyond that point the track was open. These openings between the cars were all accidental. On that point the proofs are by Schwartz:

'Q. And you told us just a minute ago some times the cars are all closed up and coupled together, and sometimes they are open? A. Yes. Q. And it all depends upon the train operations that are carried on in the yard on this and other tracks? A. Yes, sir. Q. And the openings are in one place to-day, in one part of the yard, and the next day they are in some other part of the yard? A. Yes, sir.'

He further testified:

'Q. How long did you say you had been working in that yard? A. Over five years. Q. And do you know whether it was the custom in vogue in the yard to leave open spaces between lines of standing cars? A. He says there were pretty nearly always there were spaces between the cars; that track was used for cars they had no billings for, and they used to shift cars in there.' The place that Jasko crossed on track 26 was the shortest way to reach the toolhouse, but not the only way. In that regard Schwartz testified:

'Q. And was that the most direct way for him to reach this tool box from the point where he was, or was there a different way he could have gone? A. There was another way to go, but it would take a great deal longer.'

He further said:

'Q. You testified yesterday, I believe, that in order to reach this tool box, or the way to reach this tool box, the most direct way, put the question, to reach this tool box, was to go through this opening between the cars, and if he hadn't used the opening he would have had to go a long ways around; ask him how far around Jasko would have had to have gone to reach this tool box, had he not used this opening between the cars? How far around he would have to go? A. Three car lengths he would have to walk. Q. And how would he have got across, if he had gone down three car lengths? A. He would have to cross track 26. Q. You say he would have had to go down three car lengths to have gone across to the tool box; ask him if that is right? A. Yes, sir.'

From this it is clear that he could have crossed the track at the next opening, that is, eastward of the three cars, where he would also have had a narrow opening between those cars and...