Hubert v. N.Y., N. H. & H. R. Co.

• Decision Date: 15 March 1916
• Citation: 90 Conn. 261,96 A. 967
• Court: Connecticut Supreme Court
• Parties: HUBERT v. NEW YORK, N. H. & H. R. CO.

96 A. 967

90 Conn. 261

HUBERT

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

March 15, 1916.

Appeal from Superior Court, New Haven County; Lucien F. Burpee, Judge.

Action by Marion W. Hubert against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant, plaintiff appeals. No error.

The complaint contains two counts, whose allegations are precisely alike, save that the first contains one, in substance, that the defendant was a railroad common carrier engaged in interstate commerce, and the plaintiff employed by it in such commerce at the time his injury was received, which was absent from the second. Claims for damages are made under both the federal statute regulating the liability of common carriers by railroads engaged in interstate commerce to their employés engaged in such commerce and the common law. The complaint, after alleging that the defendant was engaged in interstate commerce, recites that at the time of the plaintiff's alleged injury on May 13, 1912, changed by amendment from May 14, 1912, he was at work for it in its Westchester, N. Y., freightyards, assisting, by direction of the defendant, in unloading a freight car loaded in part with barrels, and in carrying the barrels from the car upon his back and shoulders; that one of the barrels, filled with some heavy articles, now supposed to be iron chains or rollers, was by the defendant's direction placed upon the plaintiff's back and shoulders without statement or warning of its contents; that by reason of the great weight of the barrel and the plaintiff's ignorance of that fact and of the strain it would place upon him, and his consequent unpreparedness, he was borne down and crushed and badly and permanently injured. It also avers that the plaintiff acted with due care, and that the injury was occasioned through the negligence of the defendant, its officers, agents, and employés. The remaining allegations relate to the character and extent of the injury and matters pertinent to the amount of recovery.

The answer denies or puts the plaintiff to his proof of all the allegations of the complaint, save that which avers that the defendant was an interstate common carrier by railroad.

The answer having been filed, the plaintiff made a motion for a disclosure by or on behalf of the defendant, which, after having been twice amended, was successfully demurred to. Thereupon he filed an amended motion covering the same ground and having the same purpose as that already disposed of, but so drawn as to avoid certain of the objections urged to the former motion, and stating with more brevity and precision the interrogatories to which answer was sought and the records and papers whose production was desired. This motion, for the first time, set out the facts showing that the information which the answers to the interrogatories and the production of the records and papers indicated would supply was relevant and material to the support of his case, and the reasons relied upon as entitling him to a disclosure. As showing the relevancy of the information sought, the motion recited those allegations of the first count of the complaint, which detailed the circumstances under which the plaintiff received his injury, which had been denied. As showing reasons why the motion should be granted, it averred that the plaintiff had no records, papers, or documents showing the interstate nature of his employment at the time of his injury, the point to which the barrel which caused the injury was being carried, and no record of its size, weight, or contents, that such records, papers, or documents were within the exclusive possession and control of the defendant, and that knowledge concerning those matters was its exclusively. The motion contained the following statement of papers whose production was sought:

"(1) All waybills, freight receipts, manifests, office records, and other papers and documents showing the place where the shipment of said barrel, placed as aforesaid upon the plaintiff's shoulders, was received by the defendant, and the destination of said shipment.

"(2) The time when the plaintiff stopped work on the morning of May 13, 1912.

"(3) The last barrel handled by the plaintiff before stopping work on said morning.

"(4) The number of the car in connection with which the plaintiff last worked before stopping work on said morning.

"(5) The point at which said car was received by the defendant and its destination.

"(6) All freight receipts, waybills, manifests, office records, and other papers and documents showing the size, weight, and contents of the last barrel handled by the plaintiff before stopping work on the morning of May 13, 1912."

The following were the interrogatories: "First interrogatory: Was the barrel placed upon the plaintiff's shoulders as stated in the foregoing motion consigned to a point outside of the state of New York?

"Second interrogatory: If so, to what point?

"Third interrogatory: At what point was said barrel received by the defendant?

"Fourth interrogatory: At what point was the shipment last handled by the plaintiff before he stopped work on the morning of May 13, 1912, received by the defendant, and to what point was it consigned?

"Fifth interrogatory: At what point did the defendant receive the last car in connection with which the plaintiff worked just before stopping work on May 13, 1912, and what was its destination?

"Sixth interrogatory: Did the plaintiff's duties call for his services in connection with shipments, trains, or cars in the course of transit from points outside of the state of New York or to points outside of the state of New York?"

At the trial the plaintiff, who was the only witness testifying to the circumstances attending his injury, testified that his employment with the defendant was as an extra man working only as called upon; that he was injured on either the 11th or 12th of May, 1912, when he was at work as a brakeman or freight shifter on a loaded freight train proceeding from Harlem River, in New York, to Stamford, in this state; that the train crew, of which he was a member, was in charge of Conductor Stone, its other members being unknown to him; that on arriving at the Westchester freightyards at about 7 a. m. he, with the other members of the crew under the direction of Stone, were engaged in transferring freight from one car in the train to another for the purpose of consolidating it; and that in the course of this work he was injured in the manner alleged in the complaint He testified that the barrel which bore him down and injured him weighed 400 or 500 pounds, and contained, as disclosed by one of its heads coming out in the fall, iron rollers about six inches in length. He further testified that, not realizing at the time the extent of his injury, he continued with the train to Stamford, and returned on a passenger train to New York, where and when he consulted a physician; that he remained on duty until May 14th; that thereafter he did no work, and was taken to the Lincoln Hospital in New York City on May 19th, having remained under the care of a physician meanwhile. He said that on May 10th he worked but on a worktrain, which carried no freight.

The defendant contended that the plaintiff suffered no such injury as he claimed, or any similar one, while in its employ. On its behalf it produced its records purporting to show the movements of its trains and trainmen covering the period from May 10th to May 19th, and particularly those showing the movements of the plaintiff and Conductor Stone, and claimed to have established by them that the plaintiff was not at the claimed place of accident during that time, but was elsewhere in the defendant's employ until May 16th, when he ceased to work.

Dr. Eddy, who participated in an operation upon the plaintiff at Lincoln Hospital, was called as a witness on his behalf. Upon cross-examination he testified that shortly after the plaintiff was brought to the hospital he made, in the ordinary hospital routine, statements about his case to one of the senior surgeons now practicing in Utica, N. Y.; that an entry of those statements was made in the hospital records, which he (the witness) had examined, and with which he was familiar; that, being unable to obtain the original records of the hospital, he had caused another person to make a copy of them; that he had read and knew the contents of the copy, and was able to say that it was, in general, correct, but that he had not compared it word for word with the original; that he had given this copy to Mr. Beers, of plaintiff's counsel. Defendant's counsel then asked Mr. Beers if he would permit them to see it This request being refused, they read from the New York Code of Civil Procedure provisions which, as they claimed, made the original record privileged in New York state, and that therefore it had been impossible for the defendant either to see it or to obtain it or a copy of it by means of a deposition or otherwise, but that the privilege might be waived by the plaintiff. They then called Mr. Beers as witness, and asked him to produce the paper described by Dr. Eddy. The witness stated that he had the paper in court, but, after advising with his associate counsel, declined to produce it. Defendant's counsel thereupon asked the court to order its production. This the court refused to do, upon the ground that it had not been established that it was a sufficiently accurate copy of the hospital record to be admissible.

The jury, having reported, agreed upon a verdict for the plaintiff for $7,000. The court returned them to a second consideration, addressing them as follows:

"Gentlemen of the jury, before the court accepts this verdict it feels that it ought to say a word more to you concerning the question which your foreman asked when you came back after the recess this noon, in order that there may be no possibility of any wrong...