Sliwowski v. New York, N.H. & H. R. Co.

• Decision Date: 29 January 1920
• Citation: 94 Conn. 303,108 A. 805
• Parties: SLIWOWSKI v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

108 A. 805

94 Conn. 303

SLIWOWSKI v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

January 29, 1920

Appeal from Superior Court, Fairfield County; Howard J. Curtis Judge.

Action by M. Walter Sliwowski against the New York, New Haven &amp Hartford Railroad Company to recover damages for negligently causing the death of the plaintiff's intestate, brought to the superior court in Fairfield county. Facts found and judgment rendered for the plaintiff to recover $4,521 apportioned under the federal Employers' Liability Act between the intestate's widow and minor son. No error.

The defendant maintains in its railroad yard at Bridgeport a coal pocket, at which locomotives coming in from use on the road are supplied with coal before being placed in the engine house. This coal pocket is supplied with 14 chutes designed to discharge the coal from the pocket into the engine tenders. Each of these chutes is fastened to the frame of the coal pocket by a hinge in such a manner that its outer end can be raised and lowered; when not in use, the chute can be swung up until it is out of the way of passing engines; when in use, it is lowered until the outer end is in position above the tender to be filled. At the outer end, swinging from a ring, is a rod about 4 feet 4 inches long, which, when the chute is in use, is placed in a socket on the frame of the coal pocket in such a way as to brace the chute, and which, when not in use, should be held in place by a catch on the under side of the chute. These chutes are under the general supervision of the bridge department of the defendant and are inspected about once a month by its building supervisor. They are operated, however, by employés of the company called fuel handlers, whose duty it is to see to the coaling of the engines when placed in front of the particular chute then in use. In order to make their work easier, although the rules of the defendant forbade the practice, the fuel handlers were accustomed to hang to the outer end of the chutes pieces of old iron which were called by the defendant's employés " hangers." These would weigh in the neighborhood of 15 pounds, and would hang down about a foot or 18 inches from the end of the chute. If the chute after use was properly pushed up by the fuel handler, there would be no danger to any one upon a passing engine from these hangers; and if the rods used to brace it were properly secured and held by the catches designed for them, there would be no danger from them. But if a chute were not pushed up a sufficient distance, the hangers would be in a position where any one riding upon the engine tender might strike against them; and the same is true of the rods, if the catches should fail to hold them.

Plaintiff's decedent was employed by the defendant as one of the fuel handlers working at this coal pocket. On the night of July 3, 1917, or early the next morning, he suffered an injury while in the performance of his duties, causing a rupture of the kidney, from which he subsequently died. Apparently no one saw the accident, and the only evidence as to the manner of its occurrence consists of statements made by him before his death. On their face these statements point very strongly to the hangers as the cause of the injury. The trial court, however, concluded that the blow was received by the deceased coming in contact with one of the rods which was improperly hanging over the track, and, applying to the situation thus presented the doctrine res ipsa loquitur, found that the cause of the rod being in this improper position was the defective condition of the catch which ordinarily supported it.

James W. Carpenter, of New Haven, for appellant.

Henry E. Shannon and Paul S. Goldberg, both of Bridgeport, for appellee.

MALTBIE, J.

The trial court has found that the injury to the defendant was caused by a blow received by his coming in contact with the rod attached to the end of one of the coal chutes, and that this rod had fallen from its place and swung over the track because it was not properly held in place by reason of the defective condition of the catch which ordinarily supported it. The first claim pressed upon the attention of the court is that such a finding is not supported by the allegations of the complaint, and therefore cannot serve as the basis of a judgment. The fifth paragraph of the complaint alleges, among other things, that the death of the plaintiff was caused by the negligence of the defendant " in failing to provide the plaintiff's intestate with a safe place in which to work." The rod, when not in use, would, unless provision was otherwise made for it, hang over the track in a position dangerous to the employés of the company in the pursuit of their ordinary duties. The provision of a catch to hold it out of the way was clearly an incident to the duty of the defendant to furnish its employés with a safe place in which to work; and, having provided an adequate catch, the obligation to maintain it in proper condition rested upon the defendant as part and parcel of the same general duty. Rincicotti v. O'Brien Contracting Co., 77 Conn. 617, 620, 60 A. 115, 69 L.R.A 936. Negligence in respect to the furnishing of an adequate catch in the first instance, or in respect to the maintenance, by inspection and repair, of a catch which when furnished was adequate, alike fall within the allegation quoted from the complaint. Having gone to trial upon the merits of the case without raising any question as to the generality of this allegation, the defendant cannot now object to it. Eckert v. Levinson, 91 Conn. 338, 340, 99 A. 699; Gargan v. Harris, 90 Conn. 188, 191, 96 A. 940. We are not greatly impressed with the contention of the defendant that it was in fact misled by the pleadings and the evidence offered by the plaintiff, and did not anticipate that the question of its liability might hinge upon its performance of its duty with reference to the support of this rod. In the cross-examination of one of the plaintiff's witnesses it called out a description of the rod and of the method of its support when not in use, and the fact that, if not properly secured upon its catch, it would hang over the track; and in arguing its motion for a nonsuit at the close of plaintiff's...