Sheehan v. New York, NH & HR Co.
| Decision Date | 20 December 1937 |
| Docket Number | No. 49.,49. |
| Citation | 93 F.2d 442 |
| Parties | SHEEHAN v. NEW YORK, N. H. & H. R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
E. R. Brumley, of New York City, for appellant.
Thomas J. O'Neill, of New York City, for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This is an appeal by the New York, New Haven & Hartford Railroad Company from a judgment for the plaintiff in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. c. 2, § 51 et seq., to recover damages for the death of John J. Sheehan, the plaintiff's intestate. In the early morning of September 27, 1935, he was the engineer operating a freight train which ran into the rear of another freight stalled on the Saugatuck River bridge at Westport, Conn. In the collision he sustained fatal injuries. The trial resulted in a verdict for the plaintiff for $100,000, which the court reduced to $40,000. The main question presented by the appeal is whether the trial court committed error in overruling the defendant's motion for a directed verdict on the ground that the proof showed that the deceased's own negligence was the primary cause of his death.
The appellant concedes that there was ample proof of negligence on the part of the defendant's servants employed upon the stalled train. Its flagman neglected to go back along the track a sufficient distance to protect by signals the rear of his train; its engineer neglected to sound the required whistle signal for the flagman to protect the train; and its conductor neglected to see that the flagman performed his duty. Each violated a rule of the railroad. The defense is that Sheehan was the primary cause of his own death because he ran through two automatic signals whose warnings, had he been attentive to them, would have enabled him to avoid the collision. The appellee concedes that, if these facts were established, the plaintiff cannot recover. On this issue the burden of proof is upon the defendant. Kierce v. Central Vermont Ry., 2 Cir., 79 F.2d 198, 202, certiorari denied, 296 U.S. 629, 56 S.Ct. 152, 80 L.Ed. 447. We must examine the evidence.
The automatic signals are referred to as 12 F and 16 F. The former was 1,045 feet west of the rear car of the stalled train; 16 F was about 5,100 feet west of 12 F. If the block signal system was in operating order, the presence of a train upon the bridge would cause 12 F to show double red lights, meaning "danger," and requiring an approaching train to stop, and would cause 16 F to show red and yellow, meaning "caution," and requiring the engineer passing it to have his train under such control as to be able to come to a stop before passing 12 F if that should be showing double red when he approached it. The stalled train came to rest on the bridge about 12:05 a. m., and this was about 15 minutes before the accident. Hence, when Sheehan's train approached signal 16 F about two minutes before the collision, that signal was at caution and 12 F was at danger, provided the system was functioning properly. No eyewitness testified to what signal indication was shown by 16 F as Sheehan's train approached on track 2. It was testified without contradiction that when the stalled train passed the signals both were showing green, that is, a "clear" track; which indicates that the signals were in proper order at that time. It was testified without contradiction by Geary, a brakeman in the second head motor or electric engine of Sheehan's train, that the emergency brakes were applied when the head motor reached a section shanty 930 feet west of signal 12 F, and he looked out and saw that 12 F was showing double red; which was the proper signal for it to show with the stalled train on the bridge.
There is a dispute as to when signal 12 F first becomes visible to an approaching train on track 2. Numerous witnesses for the defendant,...
To continue reading
Request your trial
-
Montellier v. United States
...295 F.2d 583 (2d Cir. 1961). Sheehan v. New York, N. H. & H. R. Co., 18 F.Supp. 635, 637 (E.D.N.Y.1937), rev'd on other grounds, 93 F.2d 442 (2d Cir. 1937), cert. denied, 304 U.S. 560, 58 S.Ct. 942, 82 L.Ed. 1527 For the period June 28, 1958 to April 8, 1970, when the oldest child will atta......
-
Finley v. St. Louis-San Francisco Ry. Co.
... ... remittitur ... Hancock v. Kansas City Term. Ry ... Co., 146 S.W.2d 627; Sheehan v. Terminal R. Assn., 344 ... Mo. 586, 127 S.W.2d 657 ... Mark ... D. Eagleton and Roberts P. Elam for respondent ... 483; ... Lehigh Valley R. Co. v. Doktor, 290 F. 760; ... Baltimore & O. R. Co. v. Robertson, 300 F. 314; ... Pacheco v. New York, etc., R. Co., 15 F.2d 467; ... Montgomery v. Baltimore & O. R. Co., 22 F.2d 359; ... Norfolk & W. R. Co. v. Collingsworth, 52 F.2d 827; ... ...
-
Limbershaft Sales Corporation v. AG Spalding & Bros.
...of dismissal on the merits. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; Sheehan v. New York, N. H. & H. R. Co., 2 Cir., 93 F.2d 442, 444. Even without such reservation this may be done under the new Rules of Civil Procedure, 28 U.S.C.A. following section ......
-
Chicago & Erie R. Co. v. Patterson
... ... Liability Act, is due primarily to his own negligence, no ... recovery can be had. See Sheehan v. New York, N. H. & H ... R. Co., 2 Cir., 93 F.2d 442; Davis v. Kennedy, 266 ... U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; Frese, Adm'x, v ... ...