McCann v. Smith
| Decision Date | 23 December 1966 |
| Docket Number | Docket 30673.,No. 187,187 |
| Citation | 370 F.2d 323 |
| Parties | Edward R. McCANN, Plaintiff-Appellee, v. Richard Joyce SMITH, William J. Kirk and Harry W. Dorigan, Trustees of the New York, New Haven and Hartford Railroad Company, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
William A. Blank, Brooklyn, N. Y., for appellee.
Joseph P. Cooney, Hartford, Conn. (R. M. Peet, New York City, J. D. McHugh, T. J. O'Sullivan, New Haven, Conn., of counsel), for appellants.
Before WATERMAN, MOORE and HAYS, Circuit Judges.
Plaintiff was a locomotive engineer in the employ of the defendants. On the morning of August 27, 1961 he was engineer of a train from New Haven to Boston and was scheduled to return on a train leaving Boston in the late afternoon. In Boston he went to a bunkroom provided by the railroad to spend the layover time between trains. As he sat in the bunkroom he was suddenly attacked by another occupant of the bunkroom and was seriously injured. Plaintiff sued for his injuries under the Federal Employers' Liability Act and the jury returned a verdict for him in the amount of $50,000. The principal ground on which defendants base their appeal is that there was insufficient evidence of negligence and that the trial court shoud have directed a verdict for the defendant instead of submitting the case to the jury.
The evidence here, though slim, was sufficient to require submission of the negligence question to the jury and to insulate its verdict from reversal. The jury could find from the evidence that there was a past history of occasional invasions of the bunkroom by undesirables, that the railroad, aware of this history, should have furnished a regular guard to protect the men in the room, or that the porter had been given this function and failed to fulfill it, and that had a guard been present he might have excluded the attacker on the ground that he was drunk or interceded to protect plaintiff when...
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Mullahon v. Union Pacific R.R., 93-16173
...assailant-employee's previous misconduct to supervisor raised jury question as to employer's liability for the assault); McCann v. Smith, 370 F.2d 323, 324 (2d Cir.1966) (possibility that a train porter was negligent in his duty to guard the bunk room against "undesirables," and that this n......
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Blake v. Consolidated Rail Corp.
...may be foreseeable if an area is 'frequented by dangerous characters', poorly lit, and unguarded, Lillie, supra, pp 460-461 ; McCann v Smith, 370 F2d 323, [176 MICHAPP 518] 324 (CA 2, 1966). Cf. Hartel v Long Island R Co, 356 F Supp 1192 (SD NY, 1972), aff'd 476 F2d 462 (CA 2, 1973), cert d......
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Blake v. Consolidated Rail Corp.
...by dangerous characters", poorly lit, and unguarded, Lillie, supra, 332 U.S. pp. 460-461, 68 S.Ct. pp. 141-142; McCann v. Smith, 370 F.2d 323, 324 (CA 2, 1966). Cf. Hartel v. Long Island R. Co., 356 F.Supp. 1192 (S.D.N.Y.1972), aff'd 476 F.2d 462 (CA 2, 1973), cert. den. 414 U.S. 980, 94 S.......
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Grunenthal v. LONG ISLAND RAIL ROAD COMPANY
...83 S.Ct. 965, 10 L.Ed.2d 80 (1963); Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); McCann v. Smith, 370 F.2d 323 (2d Cir. 1966). The Railroad also seeks a reversal, however, on the basis of an incident in a recess period during the trial. This occurred af......