Ratigan v. New York Central Railroad Co.
| Decision Date | 05 June 1961 |
| Docket Number | Docket 26217.,No. 300,300 |
| Citation | 291 F.2d 548 |
| Parties | Francis T. RATIGAN, Appellee, v. NEW YORK CENTRAL RAILROAD CO., Appellant, v. INTERSTATE COMMODITIES, INC., Appellee, and The Troy Union Railroad Company, Appellee-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
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J. Murray Dunn, Syracuse, N. Y. (McElroy, Young, Martin & Dunn, Syracuse, N. Y., on the brief), for appellee Francis T. Ratigan.
Earl G. Gallup, Jr., Albany, N. Y. (Whalen, McNamee, Creble & Nichols, Albany, N. Y., on the brief), for appellant.
M. James Conboy, Albany, N. Y. (Edward L. Bookstein, James S. Carter, John W. Cebula, James M. Conboy and Carter & Conboy, Albany, N. Y., on the brief), for appellee Interstate Commodities, Inc.
Jerome H. Shapiro, New York City (Gerald E. Dwyer, New York City, on the brief), for appellee-appellant The Troy Union Railroad Company.
Before CLARK, MEDINA and FRIENDLY, Circuit Judges.
On October 23, 1957 at about 3 A.M., Francis T. Ratigan, a brakeman employed by New York Central Railroad Company, was struck by an overhanging canopy on premises owned by Interstate Commodities, Inc. as he was about to descend from the top of a freight car to operate the brake and bring the car to a standstill. In his action against New York Central a verdict of $70,000.00 was rendered in his favor and the New York Central appeals. In its answer the New York Central asserted three cross-claims: (1) against Interstate for recovery over on the theory that Interstate was guilty of active negligence in the construction of the canopy in such manner that it projected over the rails of the track, whereas the negligence of New York Central was at most passive only; (2) against Interstate for indemnity pursuant to a contract between Interstate's assignor and Troy Union Railroad Company the terms of which had been made binding on Interstate, on the theory that New York Central and its employees were beneficiaries of the contract, although not named therein; and (3) against Troy Union, in the event of the rejection of the other cross-claims, on the theory that Troy Union was acting as New York Central's agent and was under a duty to require Interstate to include in the contract indemnity to New York Central and its employees for damage suffered by breach of the terms of the contract relative to the construction of overhanging canopies. These claims were all dismissed by the trial judge and New York Central appeals from the judgment of dismissal. By way of protection, in the event of a reversal of so much of the judgment as dismisses the cross-claim against it, Troy Union also appeals in support of a cross-claim of its own against Interstate, for indemnity under the contract if New York Central should recover against it. Judge Foley's opinion is reported at 181 F.Supp. 228.
The factual background is far from complicated and each of the several separate issues is simple enough. The principal difficulty has its source in the answers of the jury to a series of questions formulated by the trial judge as the basis for a special verdict under Rule 49(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. For the sake of clarity we shall first discuss together the claim of Ratigan against the New York Central, based upon active as well as passive negligence, and the first cross-claim of New York Central against Interstate whose negligence in the construction of the overhanging canopy would seem clearly to be active, under the law of New York which controls the substantive features of the cross-claims. Later, we shall come to the second and third cross-claims and they will not detain us long.
The scene of the accident is the siding adjacent to the Interstate property where freight cars were loaded and unloaded with merchandise coming to or going from the Interstate premises. Alongside the siding was the main Troy yard with its several tracks. Ratigan worked on the midnight to eight A.M. shift and there were five men in the crew, a conductor Bazar, an engineer, a fireman and two brakemen, one of whom was Ratigan. As these five men were riding the engine and approaching the switch leading to the Interstate siding there was a freight car attached to the rear end of the engine and there were five or six other freight cars on the siding. The instructions given by the yardmaster to the conductor, who was in charge of the operation, were to put the freight car that was attached to the engine up at the end of the siding furthest away from the switch, what Ratigan called "the hind end of the track," and then place the other cars at various locations on the siding convenient to the Interstate doors where the loading or unloading was to take place. This made it necessary first to pull out the five or six cars already on the siding, take them to the adjacent main track and leave them there, after which the one freight car already attached to the engine could be placed in its intended position at the further end of the siding. It was the duty of Lasky, the other brakeman, to stay near the engine and tend the switch; Ratigan was to pass signals along between Bazar and the engineer. The men were used to working together but the man in charge was definitely Bazar.
The first thing they did was to open the switch and back down into the siding where they coupled the five or six freight cars to each other and to the single car already attached to the engine. Then the engine and the string of freight cars were brought up past the switch and the five or six cars "kicked" up the main track. There was a slight grade running in the direction of the engine. Bazar testified he told Ratigan "to watch the cars so they would not roll back," and Ratigan put a block of wood under the one nearest the engine as they came to a stop. Ratigan signalled when they were clear of the switch and Bazar signalled to the engineer to "kick" the one car "back into the siding" and Lasky threw the switch. The men had lanterns and all the signals were given by moving these lanterns in various ways.
As we approach the critical moment Ratigan is at least six car lengths or 250 feet away from the engine, according to Bazar, and he gets no instructions whatever from Bazar, who, without communicating in any way with Ratigan, has decided that he will himself take care of braking the single freight car as it proceeds up the siding at about four miles an hour. Accordingly, Bazar, who was on the freight car when it was "kicked" off, remained on the freight car. The brake which operated as a wheel attached to the end of the car was at Bazar's end. So Bazar started to wind up the brake in a crouching position with his lantern on the brake step where Ratigan could not see it. In the meantime, not receiving any instructions from Bazar and assuming that he was supposed to brake the car, Ratigan boarded the moving car at the other end, climbed up to the top, walked along the catwalk on top of the car, and was on his hands and knees, reaching down for the ladder with his left foot, having placed his lantern on top of the car, when he was hit in the head by the end of the projecting canopy and thrown to the ground. Bazar did not know Ratigan was there until the very moment of the accident and he did not expect Ratigan to be there. And the same can be said the other way around, Ratigan did not expect Bazar to be where he was and he said he had no reason to expect him to be there. And all this was in darkness, although the men accustomed to this work could see well enough to get around.
There is also evidence, but not much, from which the inference might be drawn by the jury that the proper way to bring a single car into position on the siding was to keep it attached to the engine rather than to "kick" it in. Thus Bazar testified that if this single freight car was the only one to be put in the siding the proper way to do it was to back it in coupled to the engine. While he insisted this method was not to be used when there were several other freight cars to be put on the siding later, the jury may have rejected this qualification, especially as one of the Interstate officials testified he had repeatedly seen single cars backed into the siding attached to the engine and had never seen an instance where one was "kicked" in.
Had the action been brought by Ratigan against Interstate we have no doubt the jury would have found in Ratigan's favor, on this record. And this is so, quite apart from the specific terms of the sidetrack agreement of March 8, 1937 between Interstate's assignor and Troy Union, which requires industry to keep the "track clear of obstructions" and prohibits any temporary or permanent structures "within the space of 8 feet, 4 inches on either side of the center line of said track, or within the space of 22 feet above the said track."
But Ratigan did not sue Interstate, and his claim against New York Central was based upon two counts: (1) that the railroad knew or should have known of the existence of this canopy and was under a duty to cause it to be removed, or at least to warn its employees of the danger; and (2) that the operation of placing the single freight car in the siding was conducted in a negligent manner. While Bazar and Ratigan testified that they had never noticed this particular canopy before and counsel for the railroad claimed the photographs showed it had been erected shortly before the accident, we do not get this impression from the exhibits and there is positive and very convincing proof that the canopy was erected by Interstate in July, 1955. In view of the proof of constant use of this siding by New York Central, we think the jury had little difficulty with the first count, despite the testimony of Bazar and Ratigan that they had never noticed the canopy until the time it hit Ratigan in the head.
The case of Ratigan against the railroad was submitted to the jury...
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