New York, N.H. & H.R. Co. v. Dailey

• Decision Date: 02 May 1910
• Docket Number: 206.
• Citation: 179 F. 289
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK, N.H. & H.R. CO. v. DAILEY.

179 F. 289

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

No. 206.

United States Court of Appeals, Second Circuit.

May 2, 1910

Chas M. Sheafe, Jr. (Frederick J. Moses and Nathaniel S. Corwin of counsel), for plaintiff in error.

Charles Morschauser (W. E. Hoysradt and Abram J. Rose, of counsel) for defendant in error.

Before COXE, WARD, and NOYES, Circuit Judges.

COXE Circuit Judge.

The plaintiff was in the employ of the defendant as 'hostler' at East Hartford, Conn. After an engine had come in from a run it was his duty to see that it was supplied with water, coal and sand and placed in a stall at the roundhouse until needed for the next run. The roundhouse was of the usual construction, built in a semicircle around a circular turntable, which, after the engine was placed upon it, was turned until the track on the turntable registered with the track leading to the stall in the roundhouse where the engine was to be placed.

The stalls were separated by posts which supported the roof and also supported swinging doors. The clearance between the engine and these posts was about 11 inches. The construction in this respect was similar to that of other roundhouses, the clearance varying in different structures from about 4 inches, which is the minimum clearance, to 13 inches, which is the maximum. The plaintiff was an experienced railroad man and for five years prior to the accident had acted as 'hostler' in defendant's roundhouse at Hopewell. This roundhouse was similar in construction to the one at East Hartford where the accident happened. The evidence showed that the clearance was insufficient to enable a man to alight from an engine while it was passing through the entrance to the stall before the posts had been passed. Ordinarily the 'hostler' has no occasion to alight at this point. His duty is to remain on the engine until it comes to a standstill. It also appeared that such an accident as happened to the plaintiff was unknown among railroad men. The combination of unusual circumstances which led to the accident in question was as follows: The engine came in from the road at about 5 a.m. It had not sufficient steam to move into the roundhouse and there was no air to operate the brakes; in short, the engine was 'dead.' This condition was reported to one Moriarity, who procured another locomotive and pushed the plaintiff's engine to the sand house, the water station, and, finally, onto the turntable. Subsequently, with still another locomotive, Moriarity backed up against the plaintiff's engine on the turntable and gave it a 'kick' for the purpose of sending it into the stall. The plaintiff, fearing lest the engine might run into and, perhaps, through the rear wall of the roundhouse, and being unable to stop its momentum, attempted to alight at the moment the post was being passed, for the purpose of blocking the wheels. He was caught between the post and the tender and received the injuries complained of.

At the close of the testimony the defendant moved the court to dismiss the complaint and direct a verdict for the defendant on the following grounds: First, that no negligence had been proven against the defendant in the construction and maintenance of the roundhouse; second, that if the proximate cause of the accident was the action of Moriarity, it was the act of a fellow servant, for which the defendant is not responsible; third, that the plaintiff had full knowledge of the situation on the...