Pieczonka v. Pullman Co., 142.
| Decision Date | 06 March 1939 |
| Docket Number | No. 142.,142. |
| Citation | 102 F.2d 432 |
| Parties | PIECZONKA v. PULLMAN CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Locke, Babcock, Hollister & Brown, of Buffalo, N. Y. (Evan Hollister, of Buffalo, N. Y., of counsel), for appellant.
William L. Clay, of Rochester, N. Y., for appellee.
Before L. HAND and CHASE, Circuit Judges and PATTERSON, District Judge.
This action comes back to us after a second trial; this time on appeal from a judgment for the plaintiff entered on the verdict of a jury. Our former opinion sets out the general outline of the case in enough detail, and we shall not repeat it. Pieczonka v. Pullman Company, 2 Cir., 89 F.2d 353. We held that, while the evidence would not support a recovery under the N. Y. Labor Law, Consol.Laws, c. 31, it would, at common-law; and the chief question is whether that remained true on the second trial. The defendant showed that on July 14, 1928, it secured three "Watters Sandblast Helmets"; and the requisition for these — given to the defendant's purchasing department — declared that two of them were to go to the "Paint Department", and one, to the "Cabinet Department". So far as appears, this intention was carried out, for although it had all the facts at its command, the defendant did not show that these destinations were ever changed. We think that the jury might have fixed the Watters mask as the minimum equipment required for sandblasters. It is true that it was the best then available, and ordinarily a master is not obliged to supply the best; but the cost was only $25 and the defendant needed only four or five. The stake was so great — the workmen's exposure being certain and grave — that, measuring the cost against the risk, the jury might pitch the standard of reasonable care higher than in other situations. The defendant's witnesses — its employees — did indeed say that the deceased had been furnished with such a mask and a hood to go with it, and that he had been found again and again working without it. But the plaintiff met this with the testimony of three fellow workers of the deceased, who, although, as before, they were not very convincing, made an issue for the jury. In the first place, two masks were not enough to go round. Concededly there were three sandblasters on the job, which was in any case one too many; and there was testimony to support a finding that at times there were four. Kasa, one of the plaintiff's witnesses, said so; and Beck, a foreman of the defendant, said that in addition to the deceased, there were "three main ones". This shortage of masks served strongly to corroborate the testimony of the plaintiff's witnesses. It is true that of these, Michalic had left the defendant's employ a few months before July 5, 1929, but he had been there for nine or ten months after the Watters masks had been bought; and his testimony was material, since if the deceased had not been equipped with such a mask during that period, it was not improbable that he was not so equipped later. Kasa and Mucha, the other two, said that on the occasions when they saw the deceased at work, he had only the hood. The testimony of the defendant's witnesses was not a conclusive answer to this evidence. The deceased may on occasion have been supplied with a Watters mask, but since there were too few to go round, obviously the jury was not bound to believe that he always had the preference. In every likelihood he must at times have received one of the several less adequate hoods or masks which the defendant was then using. We conclude, therefore, that there was enough to support a finding that the defendant failed to supply the deceased with suitable equipment.
The defence of contributory negligence lay with the defendant (§ 265, N.Y. Civil Practice Act) as did that of assumption of risk. As to the last, it is plain that an ignorant sandblaster was in no position to know what sort of mask would best protect him; he must take what was issued on the assumption that it was all he needed. As to contributory negligence, we think that, though the defendant's evidence was competent, it was not a bar, even if the jury had believed the witnesses. Three superiors of the deceased swore that they had come...
To continue reading
Request your trial
-
Carter Products, Inc. v. Colgate-Palmolive Company
...to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess (Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432, 434), and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubted......
-
DeVries v. Starr, 9544.
...to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess (Pieczonka v. Pullman Co., 2 Cir., 102 F. 2d 432, 434), and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubte......
-
Sheldon v. Metro-Goldwyn Pictures Corporation
...to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess (Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432, 434), and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubted......
-
Bertha Building Corp. v. National Theatres Corp.
...or explained. The burden is, of course, on National to establish its affirmative defense of the limitation statute. Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432. And when the plaintiff has made out a prima facie case of absence from the jurisdiction the burden is on the defendant to show ......