Smith v. Pennsylvania R. Co.

• Decision Date: 12 January 1917
• Docket Number: 114.
• Citation: 239 F. 103
• Parties: SMITH v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

239 F. 103

SMITH v. PENNSYLVANIA R. CO.

No. 114.

United States Court of Appeals, Second Circuit.

January 12, 1917

Kellogg & Baker, of Buffalo, N.Y. (Francis F. Baker, of Buffalo N.Y., of counsel), for plaintiff in error.

Rumsey & Adams, of Buffalo, N.Y. (H. J. Adams, of Buffalo, N.Y., of counsel), for defendant in error.

Before WARD, ROGERS and HOUGH, Circuit Judges.

HOUGH Circuit Judge.

Plaintiff was a brakeman in defendant's employ, and while walking between two tracks, in order to reach the cars on which he was working, was passed by a Pennsylvania train running on one of the tracks. At this time he received injuries, and brings this action to recover damages therefor.

The complaint alleges that, while plaintiff was proceeding along the roadbed as above stated, he was 'struck by a piece of iron which was negligently and carelessly allowed to project out beyond the side of a passing car or engine' of the moving train aforesaid. No one did, or apparently could testify to the occurrences immediately before injury, except Smith himself. The substance of his evidence is that as the train went by, he being distant from it less than 4 feet something hard hit him on the head; he did not know what it was, though he thought it 'felt like iron.'

Testimony was offered tending to show that firemen of locomotives use an iron hook about 10 feet long wherewith to rake the engine fire, and that after so raking and getting the end of the tool hot, they swing it outboard-- i.e., over the side-- in order to get it back into the body of the tender, where it lies when not in use. There was no evidence that this had occurred on the passing train. The action is at common law, no statute is invoked by either side. The trial court held that t there was no proof of negligence, and dismissed complaint accordingly.

Plaintiff now contends that it was for the jury to say whether the rake hook was swung out on the train near which he was injured, and also whether he was hit by such hook; there being no suggestion of any other possible projection that could have injured him.

In the confessed absence of any positive or direct evidence as to how Smith was injured, or what hit him, the principle of res ipsa loquitur is relied on. This doctrine is stated in San Juan, etc., Co. v. Requena, 224 U.S. 89, 32 Sup.Ct. 399, 56 L.Ed. 680, and Sweeny v. Erving, 228 U.S. 233, 33 Sup.Ct. 416, 57 L.Ed. 815, Ann Cas. 1914D, 905 where it is pointed out that, however applicable it may be, in no case is the general issue converted into an affirmative defense; and this is true, though the burden of explanation may rest on the defendant. Kraljer v. Snare, etc., Co., 221 F. 256, 137 C.C.A. 108. Before, however, any defendant is called upon to explain how (e.g.) an injury was received, there must be facts proved affirmatively showing a surrounding situation which in ordinary course would not permit or produce injury, and also that something under defendant's...