Pennsylvania R. Co. v. Kelly

• Decision Date: 07 March 1910
• Docket Number: 134.
• Citation: 177 F. 189
• Parties: PENNSYLVANIA R. CO. v. KELLY.
• Court: U.S. Court of Appeals — Second Circuit

177 F. 189

PENNSYLVANIA R. CO. v. KELLY.

No. 134.

United States Court of Appeals, Second Circuit.

March 7, 1910

Robinson Biddle & Benedict (Norman B. Beecher, of counsel), for plaintiff in error.

House Grossman & Vorhaus (Louis J. Vorhaus and Charles Goldzier, of counsel), for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

On the morning of November 9, 1906, the plaintiff, who was a truckman and piano mover, started with a two horse team and two helpers to the pier of the defendant at the foot of West Thirty-Seventh street, New York, to receive and move a Tiffany grand piano. When the plaintiff, who was driving reached the foot of the street Michael Gunn, a policeman of the city of New York assigned to special duty on the defendant's pier and paid by the defendant, raised his hand as a warning signal to the plaintiff to halt. This he did not do immediately and an altercation arose which culminated in his receiving a severe blow from the policeman's club which caused the injuries complained of.

The version of the occurrence given by Gunn is to the effect that the plaintiff was contumacious and insulting and that the blow was struck to prevent an assault by the plaintiff and his companions. It is, of course, unnecessary for us to consider the question of fact thus presented. The basic question is, should the court have submitted the facts to the jury, and, in such circumstances, the plaintiff is entitled to the most favorable view of the testimony.

The complaint alleges that on the day in question, 'The defendant had in its employ as a special officer, one Michael Gunn, whose duty it was as such special officer, to regulate the traffic on the defendant's pier at the foot of West Thirty-Seventh street. ' This appointment was made pursuant to the provisions of the city's charter which provides, in substance, that, when the necessity therefor is shown, the police commissioner may appoint and swear in any number of special patrolmen to do special duty at any place in the city, the applicant paying for such services in advance. Such special patrolmen shall be subject to the orders of the chief of police, shall obey the rules and regulations of the police department of the city and conform to the general discipline and such special regulations as may be made. They shall 'possess all the powers and discharge all the duties of the police force, applicable to...