Mahoney v. New York Central Railroad
| Citation | 234 F.2d 923 |
| Decision Date | 29 June 1956 |
| Docket Number | No. 352,Docket 23860.,352 |
| Parties | Bernard J. MAHONEY, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD and Universal Concrete Pipe Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Milton Karz, Rochester, N. Y., for plaintiff-appellant.
Harris, Beach, Keating, Wilcox & Dale, Rochester, N. Y. (Edward R. Macomber and Thomas M. Hampson, Rochester, N. Y., of counsel on the brief), for defendant-appellee New York Cent. R. R.
Nier & Doyle, Rochester, N. Y., for defendant-appellee Universal Concrete Pipe Co.
Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
Plaintiff Bernard J. Mahoney brought suit against defendant New York Central Railroad under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries he sustained in the course of his duties as yard clerk in the employ of the railroad. Plaintiff, a resident of New York, also joined Universal Concrete Pipe Company, an Ohio corporation, as a defendant because of diverse citizenship.
At about 3:30 A. M. on December 11, 1953, while Mahoney was engaged in marking a train in the New York Central's Goodman Street yards in Rochester, New York, the train began to move and he climbed on. As that train passed a stationary gondola car in the yard a wire or wires protruding from the car caught him under his right eye and produced the injuries of which he complains. A few hours previous to this incident the gondola car had been picked up by the railroad from the Universal Concrete Pipe Company after Universal had unloaded from it a shipment of wire mesh.
The claim against the New York Central was based on its alleged negligence in not properly examining the car and discovering and removing the wire. The claim against Universal Pipe was based on its alleged negligence in unloading the car without removing the wire which caused the injury. The jury returned a verdict in favor of both defendants and the plaintiff appeals.
The plaintiff seeks first to challenge the verdict on the ground that it is not supported by the evidence. Since he made no motion for a directed verdict, however, he cannot raise any question as to the legal sufficiency of the evidence. Srybnik v. Epstein, 2 Cir., 1956, 230 F.2d 683, 686. Nor can he challenge the verdict as against the weight of evidence since the trial judge's denial of the motion for a new trial on that ground was within his discretion and therefore not reviewable. Srybnik v. Epstein, supra.
The plaintiff also complains of the exclusion of certain evidence. It was the plaintiff's contention that the protruding wire which injured him was left on the gondola by Universal Concrete Pipe when it unloaded its shipment of wire mesh. In support of this theory the plaintiff sought to show that there was a general custom or practice of...
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