McAdoo v. Anzellotti

• Decision Date: 09 February 1921
• Docket Number: 71.
• Citation: 271 F. 268
• Parties: McADOO, Director General of Railroads, v. ANZELLOTTI.
• Court: U.S. Court of Appeals — Second Circuit

271 F. 268

McADOO, Director General of Railroads, v. ANZELLOTTI.

No. 71.

United States Court of Appeals, Second Circuit.

February 9, 1921

Allan McCulloh, of New York City (Clifton P. Williamson and H. S Ogden, both of New York City, of counsel), for plaintiff in error.

William H. Wack, of New York City, for defendant in error.

There was much freight already on the pier, so piled (to a height not clearly shown) as to leave a gangway for horsedrawn trucks or wagons in the center of the pier, and narrower passages from the unloading gangplanks to this central road. Anzellotti starting his hand truck down the gangplank, passed (on the run) through the narrow passage between piles of freight into the central gangway, turned into the same, and there ran into the wheels of a horse-drawn wagon, capsizing his own truck and receiving injuries for which this action was brought.

While alleging generally a failure on the employer's part to furnish him with a safe place to work, the specific negligence relied on was failure to provide any system of warning, in respect of approaching horse trucks, to men who (like Anzellotti) had to run down the gangplank, with loads so heavy that the hand trucks could not be stopped on the inclined plank; the piles of freight on the pier being so high that the approach of vehicles in the central gangway could not be seen until the laborer reached the intersection of central and transverse passage ways. It was admitted by plaintiff below that this condition had existed (whenever there was much freight on the pier) as long as he had worked for defendant, that he was familiar with the danger, that the central gangway was at times much frequented by vehicles, and he knew that he would have no means of ascertaining the proximity of a vehicle other than his own observation.

These facts appearing in the plaintiff's case, defendant at the close thereof moved to dismiss, or direct a verdict, because (inter alia) plaintiff was familiar with the conditions proved, which had existed for some time, that the same were 'open and obvious,' and 'whatever risks there were in the situation ' plaintiff assumed.

Over due exception the court refused to even submit to the jury any question of assumption of risk, being of opinion that the evidence above outlined presented no such question, but only one of contributory negligence, assuming that negligence existed on the defendant's part. Defendant rested without offering any testimony. The case was sent to the jury with a charge making no mention of any risk or of its assumption. Plaintiff had a verdict, and defendant brought this writ.

Before WARD, HOUGH and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

To trace the origin of the rule of assumption of risk, to do the same for that of contributory negligence, and compare and reconcile the decisions thereunder may be interesting or impossible (18 R.C.L.pp. 639 et seq., 693 et seq.); but neither for the trial court nor this court is the inquiry profitable, because both courts are bound by decisions of long standing and ruling authority. Risk assumption and contributory negligence are things 'quite apart' and separately to be considered. Choctaw, etc., Co. v McDade, 191 U.S. 64, 68, 24 Sup.Ct. 24, 48 L.Ed. 96; Lauria v. Du Pont, etc., Co., 250 F. 353, 356, 162 C.C.A. 423.

The distinction between the two has been stated with acuteness by Sanborn, C.J., in St. Louis Cordage Co. v. Miller, 126 F. 495, 502, 61 C.C.A. 477, 63 L.R.A. 551, and is said to be briefly this-- that assumption of risk rests in contract and contributory negligence in tort. This decision and distinction is repeated in Chicago, etc., Co. v Crotty, 141 F. 913, 916, 73 C.C.A. 147, 4 L.R.A.(N.S.) 832, in an opinion by Justice Van Devanter when Circuit Judge, and it was followed in another circuit in Chicago etc., Co. v. Ponn, 191 F. 682, 688, 112 C.C.A. 228.

Whether the definition attempted in the St. Louis Cordage Co. Case is the last word or not, the rule that the two things are two things and not identical has never been...