Pennsylvania R. Co. v. Nelson

• Decision Date: 13 February 1919
• Docket Number: 170.
• Parties: PENNSYLVANIA R. CO. v. NELSON.
• Court: U.S. Court of Appeals — Second Circuit

259 F. 156

PENNSYLVANIA R. CO. v. NELSON.

No. 170.

United States Court of Appeals, Second Circuit.

February 13, 1919

Circumstantial evidence in action for death or a railroad employé, killed while engaged in loading cars in interstate commerce on a float, held insufficient to go to the jury; it making it a matter of speculation whether accident occurred by reason of a coil of rope negligently placed on the incline approach of a platform, or through nearness to cars of stanchion of platform, an assumed risk.

The plaintiff in error, defendant below, is hereinafter referred to as defendant. The defendant is a corporation organized and existing under the laws of the state of Pennsylvania, and is an interstate commerce railroad, which, it is alleged operates in the states of New York, New Jersey, and Pennsylvania, and in connection with its railroad operations it maintains a freight yard in Jersey City and car floats upon which cars are transported to and from the states of New York and New Jersey.

The defendant in error, plaintiff below, is hereinafter referred to as plaintiff. The plaintiff is the widow and administratrix of her husband, who was employed by defendant as a conductor of freight trains, and, at the time of his death, was engaged in interstate commerce.

The plaintiff's intestate received the injuries from which he died on October 31, 1917, while he was engaged in loading cars upon a float in the defendant's yard in Jersey City. It is alleged that the injuries were due to defendant's negligence in failing to furnish the deceased with a reasonably safe place in which to work.

The jury returned a verdict in favor of the plaintiff in the sum of $12,273.

Burlingham Veeder, Masten & Fearey, of New York City (Morton L. Fearey and S. C. Coleman, both of New York City, of counsel), for plaintiff in error.

Joseph A. Shay, of New York City (Leonard F. Fish, of New York City of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

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

This suit is brought under Act April 22, 1908, c. 149, 35 Stat 65, known as the federal Employers' Liability Act, U.S. Compiled Statutes Ann. 1916, vol. 8, Secs. 8657-8665. This act gives jurisdiction to the courts of the United States concurrent with that of the courts of the several states. The action may be brought in the district in which the cause of action arose, or in the district of the residence of the defendant, or in which the defendant is doing business at the time of the commencement of the action; and this action is brought in the Southern district of New York, in which district the defendant is engaged in business and has its principal office.

The act provides that every common carrier by railroad, while engaged in interstate or foreign commerce, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employe to his or her personal representative for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

At the time of his death the plaintiff's intestate was employed by the defendant, and had been in its employment for somewhere between 13 and 14 years. That he was engaged in the work of interstate commerce at the time of the accident which resulted in his death appears clearly from the evidence, and is not controverted by the defendant. The decedent met his death while at work loading cars upon a float which was moored to a pier on the New Jersey side of the North River, and the cars and the decedent were destined for New York.

The particular float in question was constructed for the purpose of transporting cars, and had a raised platform extending through the center of it from the front to the rear. The tracks, upon which the cars were placed, extended along on either side of the raised platform. The float was long enough to hold 6 connected cars; and hence the float held 12 cars, 6 upon each side of the raised platform. The height of the platform came on a level with the floor of the cars. The platform was covered, and the roof was held up by upright timbers or stanchions. There were no closed sides nor ends to the platform; but it was entirely open, except the roof, which was upheld by the posts or stanchions as stated.

When the cars were being placed upon the float, it was necessary for the deceased to observe that they were not placed with the doors opposite these uprights or stanchions, in order that the doors of the cars should not be obstructed by these uprights, so that the cars might be freely unloaded after reaching the pier in New York. It was also the duty of the deceased to see that the doors of the cars were closed, and to ascertain when there were a sufficient number of cars upon the float, and to signal to the engineer in charge of the locomotive and train, and to see that the tracks were connected to avoid derailment. To accomplish these objects, it was the duty of the deceased to ride upon the step on the front end of the first car, of the string or section of cars, being placed upon the float. At each end of the raised platform was an approach, descending from the ends of the platform, on an incline to a slightly lower level.

Upon the night of the accident the deceased was riding upon the step on the front end of the first car being placed upon the float, where it was his duty to ride, and where it was the custom for all conductors, as well as himself, to ride, when loading the float. As the cars were being pushed toward the float, and as the first car upon which the deceased was riding entered upon the float, an outcry was heard, and the engineer stopped, and an examination disclosed the deceased lying upon the platform immediately next to the first stanchion, fatally crushed. The platform ran east and west. The cars were being pushed on from the west, and the deceased was found lying upon the platform with his head in a northwesterly position and his feet in a southeasterly position, and about 3 to 5 feet east of the first stanchion. The unmistakable conclusion is that the deceased met his death by being crushed between the first stanchion and the car. There was a clearance of only 11 inches between the stanchion and the car. He had been rolled through the space between the car and the stanchion. He sustained a fracture of the pelvis and other internal injuries from which he died; but his legs were not crushed, and the man's head was not cut in any way and his shoulders were unhurt.

No person was a witness of the accident. But it is claimed by the plaintiff that the position in which the deceased was found shows that on reaching the incline approach to the platform he got off the step of the car and upon the incline, as was the custom, and in doing so stepped upon or into a large coil of rope which had been placed there, and that this caused him to stumble and fall against the stanchion, and that he was rolled around it, and his body was thrown as he was rolled through.

The case was brought on the theory that the defendant had failed to furnish the plaintiff's intestate with a safe place in which to work. That the place was unsafe: (1) Inasmuch as the space between the stanchion on the float and the side of the car as it entered the float and passed the stanchion was too narrow. (2) Because a coil of rope was negligently placed upon the incline approach of the platform.

The trial court withdrew from the jury's consideration the first of the above claims. The undisputed evidence was that the float was built as floats are customarily, and the distance between the stanchion and the side of the car was the customary distance in floats of this kind. It was not negligence, therefore, for the defendant to have in use such a float; and, if it had been negligence, the plaintiff was chargeable with knowledge of the distance between the stanchion and the side of the car, as he had been working for three months prior to the accident on this and other like floats, and as he worked on with knowledge and without objection he must be held to have assumed the risk. There was no error in withdrawing that matter from the jury.

But the presence of the coil of rope on the incline of the platform was quite another matter, and must now be considered. The plaintiff contends:

'That the defendant was guilty of negligence in placing the rope upon the incline where conductors were compelled to step from moving cars in the night, and that the facts warranted the inference that the deceased in stepping from the car upon the platform stumbled upon the coil of rope and was precipitated forward between the stanchion and the car, thus rendering the defendant liable.'

It appears that at the time of this accident rope was lying on the incline of the platform. A member of the decedent's crew, who had worked for three or four years in loading cars on the float, was asked whether he had in the course of that time ever seen a coil of rope lying as that did upon the incline, and he said that he had never seen one coiled up like that. He had sometimes seen a rope lying on the incline, but he had never seen it lying there coiled. And the examination of another witness, a member of decedent's crew, was as follows:

'Q. Did you, in the time you worked there, ever see a coil of rope upon an incline? A. I never saw it coiled up like that.

'Q. What did you see? A. I most generally saw it laying lengthwise on the side of the track, or in the center

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