Powers v. New York Central Railroad Company

• Decision Date: 15 January 1958
• Docket Number: Docket 24604.,No. 97,97
• Citation: Powers v. New York Central Railroad Company, 251 F.2d 813, 76 A.L.R.2d 1207 (2nd Cir. 1958)
• Parties: Rose POWERS, as Administratrix of the Goods, Chattels, and Credits of Edward J. Powers, Deceased, Plaintiff-Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

251 F.2d 813 (1958)

Rose POWERS, as Administratrix of the Goods, Chattels, and Credits of Edward J. Powers, Deceased, Plaintiff-Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 97, Docket 24604.

United States Court of Appeals Second Circuit.

Argued November 20, 1957.

Decided January 15, 1958.

Motion to Amend Mandate Denied February 13, 1958.

Irving Levine, New York City, for plaintiff-appellant.

C. Austin White, New York City (Gerald E. Dwyer, Robert Cedar and William R. Johnston, New York City, of counsel on the brief), for defendant-appellee.

Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The two questions for decision are whether there was sufficient evidence to support the conclusion that Powers was in the course of his employment by the railroad at the time he was found in the Hudson River on March 10, 1949, immediately adjacent to his place of work, and whether the jury's answers to the special interrogatories may be considered as having determined that issue in favor of the plaintiff. As we answer both questions in the affirmative, and as there was ample evidence from which the jury could find that the railroad did not have at hand sufficient life-saving equipment and did not take adequate measures to preserve Powers' life, we reverse the order of the District Court which set aside the jury's verdict for $85,000 and remand the case to the District Court with directions to reinstate the verdict and enter judgment thereon.

The executrix of the estate of Edward Powers brought this suit under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq., alleging that Powers' death on March 10, 1949 resulted from the negligence of the defendant railroad because of its failure to have at hand equipment for life-saving and resuscitation when Powers was found floating in the Hudson River just off the defendant's bulkhead, and for failure to secure prompt and proper care for the preservation of his life after his removal from the river.

The only material disputes as to the occurrences surrounding Powers' drowning on March 10, 1949 concern the time when Powers was seen on dry land and the time when he was first discovered in the water.

For twelve years prior to March 10, 1949 Powers, then 42, had been employed by the New York Central as a crane operator. He was the only crane operator assigned to the railroad's 60th Street Freight Yards which extend from 59th to 72nd Streets along the Hudson River and include docks, piers and float bridges, among them Piers D, E, F and G. Powers was assigned to work between Piers D and F from 8:00 A.M. to 5:00 P.M. and, during the colder months such as March, he was allowed an extra 30 minutes to drain the radiator of his crane. Thus it is conceded that his quitting time on March 10, 1949 was 5:30 P.M.

On March 10 Powers' last assignment was to pick up some cases of machinery and place them on the bulkhead between Piers E and F and he finished that work about 3:30 P.M. Although it does not appear that Powers did anything after 3:30, he was required to remain in attendance until 5:00 P.M. in case he might be needed. Powers was next seen sometime between 5:00 and 6:00 in the Pier F office where he tried to make a telephone call. When the railroad policeman, Charles Vail, came to the office in response to a request to investigate, Powers identified himself as an employee. After this, Joseph Walker, a railroad checker who had been in the Pier F office during Vail's visit and earlier when Powers tried to call Pat's Bar & Grill, saw Powers walking south toward Pier E.¹ Walker testified that this was shortly after 6:15 or 6:20.

Policeman Vail, who testified that his talk with Powers occurred around 5:45 or 5:50, later heard some splashing in the water around Pier G, saw Powers' body in the river, and ran over to Walker's gang for help. Walker found a boat hook with which he grabbed Powers' pea jacket and held Powers' head out of the water. No one knew how Powers had got into the river, nor does the record show whether he could swim.

Meanwhile Alfred Schoen, the clerk on Pier G, when he saw Powers in the water, which he said was about 5:40, went out on Pier F and signalled for assistance to the captain of New York Central tug 12 which was off the end of the pier heading south. The tug put about and came in to the bulkhead and two deckhands, Vincent Hilyer and Thomas Pehush, climbed down below the bulkhead, put a rope around Powers and after ten minutes they succeeded in pulling him up onto the bulkhead. Pehush testified that the tug went to Powers' assistance at about 5:50; Hilyer said it was between 5:00 and 5:30.

Hilyer and Pehush then stretched Powers out on the bulkhead and alternated in applying artificial respiration. After fifty minutes' manipulation Powers started to breathe again. No blankets were available, the air temperature was 44 degrees and the water temperature 40 degrees. No stretcher being at hand, Hilyer and Pehush then carried Powers to a nearby unheated restroom, used by Powers and other employees to change their clothes, laid him on a table and cut off his clothes. They put burlap sacks all around his body and massaged him although at this point Powers resisted and tried to fight them off.

Meanwhile policeman Vail had telephoned his superior, Lieutenant Jenks, who in turn called for an ambulance and for the Harbor Squad of the Police Department whose headquarters was at the Battery about five miles away. The Emergency Service Division of the New York City Police Department which was nearby and fully equipped for such life-saving was never contacted.

A few minutes after Powers had been carried to the restroom, a private ambulance arrived, Powers was taken away on a stretcher and was admitted to nearby Roosevelt Hospital at 7:23 P.M. He died at 9:30 P.M. The Medical Examiner's report stated that death was due to submersion, pulmonary edema and acute alcoholism.

Judge Murphy charged the jury that their verdict turned on two simple factual issues: "Whether the defendant railroad by its failure to have certain equipment for rescuing and resuscitating a drowned man was negligent, and, two, if you find that such failure made it negligent, whether such negligence was the proximate cause in a period of three or four hours of the drowned man's death." Although it was apparent that the railroad contended then, as it did later, that it was not liable because Powers' accident had not occurred in the course of his employment by the railroad, this question was not put to the jury. See Morris v. Pennsylvania R. Co., 2 Cir., 1951, 187 F.2d 837, 843. The judge merely stated that it was conceded that Powers had half an hour after 5:00 P.M. in which to drain his crane and a reasonable time to leave the grounds of the railroad. But instead of asking the jury to decide whether the railroad owed Powers some duty by reason of his still being in the course of his employment at the time and place of his misadventure, the court merely asked the jury to fix the time when Powers was last seen on dry land and the time when he was first seen in the water. The plaintiff's requests to charge 1, 2, 3, 4 and 8 had to do with these matters, and exceptions to the judge's failure to cover these matters in his charge were duly noted in the record.

The judge left to the jury eight special questions which the jury answered as follows:

"Question 1. At what time on March 10, 1949, before Powers was in the water, was he last seen on dry land?

"Answer: About 5:15 to 5:40.

"Question 2. At what time on March 10, 1949 was the body of Mr. Powers first seen in the water?

"Answer: About 5:45 to 6:15 P. M.

"Question 3. What was the proximate cause of Mr. Powers\' death?

"Answer: Submersion, pulmonary edema, failure to conserve body heat, failure to summon New York City Police Emergency Squad, failure of railroad to maintain trained life saving and first-aid personnel and not having first-aid station.²

"Question 4. Did the absences or failures mentioned in Question 3 create an unreasonable risk of harm to persons like the plaintiff?

"Answer: Yes.

"Question 5. If your answer to Question 4 is yes, was such risk of harm reasonably foreseeable by the defendant?

"Answer: Yes.

"Question 6. Was the defendant railroad negligent under the circumstances of the case in failing to have blankets, inhalator, pulmotor, stretcher, life-saving equipment, or to provide a heated room to which Mr. Powers could be removed?

"Answer: Yes.

"Question 7. Is your verdict for the plaintiff or the defendant?

"Answer: Plaintiff.

"Question 8. If your verdict is for the plaintiff, what is the amount of plaintiff\'s damages?

"Answer: $85,000."

There was ample evidence in the record to support each and every one of the answers of the jury.

Judge Murphy set aside the verdict and directed judgment for the railroad in an opinion reported at 149 F.Supp. 71, giving two reasons for his action: (1) That under the jury's time findings Powers was not an "employee" at the time of the accident, and (2) that, in any event, the railroad was under no duty to provide medical treatment. We do not agree with the District Judge's interpretation of the jury's finding and his view of the facts, and also with his views of the duty of the railroad under the circumstances as found by the jury in their answers to the special questions.

Whether Powers was acting within the scope of his employment at the time of the accident which led to his submersion in the Hudson River was a question to be resolved by the jury from all the surrounding circumstances. When, where and how the accident occurred were circumstances to be determined and weighed by the jury in order to determine this central question.

An employee does not lose his character as an employee at the very moment his working time ends. Mostyn v. Delaware, L. & W. Co., 2 Cir., 160 F. 2d 15, certiorari denied 1947, 332 U.S. 770, 68...