New York Cent. R. Co. v. Gapinski

• Decision Date: 16 January 1918
• Docket Number: 103.
• Citation: 249 F. 346
• Parties: NEW YORK CENT. R. CO. v. GAPINSKI.
• Court: U.S. Court of Appeals — Second Circuit

249 F. 346

NEW YORK CENT. R. CO. v. GAPINSKI.

No. 103.

United States Court of Appeals, Second Circuit.

January 16, 1918

Alex. S. Lyman, of New York City (Robert A. Kutschbock and Martin Gilligan, both of New York City, of counsel), for plaintiff in error.

Charles P. Sullivan, of New York City (Lowen E. Ginn and Thomas F O'Sullivan, both of New York City, of counsel), for defendant in error.

Gapinski was a laborer in the employ of the railroad company and at the time of injury was engaged in examining and greasing the journal boxes of freight cars. His occupation required him to stoop over while removing and inserting the 'stuffing' and grease in said journal boxes. He complained of having been struck and injured by some projecting object upon a car, one of several or many sent down upon the track on which, or alongside of which, he was working.

There was direct evidence that many of the cars lying at rest upon and sent down on said track were 'crippled'; i.e cars 'with doors hanging out; * * * some were sticking out from cars that were broken.' Gapinski testified that he did not know what hit him, because when he was struck he was 'half stooping and * * * leaning over and working.'

The testimony regarding crippled cars was denied, and the trial judge sent the case to the jury, to ascertain whether 'there was any projection sufficient to hit a man who was at work' in the manner testified to by Gapinski himself. Plaintiff below had a verdict. The railroad company took this writ; the assignments of error substantially challenging the action of the trial court in refusing to dismiss or direct a verdict at the close of the whole case.

Before WARD, ROGERS and HOUGH, Circuit Judges.

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

It is we think sufficient to dispose of this writ to refer to Smith v. Pennsylvania R.R. Co., 239 F. 103, 151 C.C.A. 277. We there pointed out that, where there was no proof that any definitely indicated thing wrought the injury complained of, nor 'that the circumstances rendering it possible for the injuring thing suggested (by plaintiff) to reach or touch (plaintiff) existed at the time and place of damage,' any verdict resting on such evidence, or lack of it, would be building one presumption upon another.

In that case the suggested instrument of injury was the swinging rake hook of a passing locomotive. In this case the suggested cause of plaintiff's hurt...