Sadowski v. Long Island Railroad

Plaintiff was, at the time of his alleged injury on August 25, 1939, thirty-five years of age and in the employ of the defendant as an engine service man in its yards at Morris Park, N. Y., on an eight-hour shift. He had been working on the same job with the same duties continuously

Adjoining the coal wharf and water tank where the locomotives were placed for servicing was a sandhouse where the sand required was prepared for use, entirely enclosed except for one or two doors and some three or four windows. Three stoves were located inside the building with large hoppers around the drums into which the sand, procured by means of a wheelbarrow from a pile outside the building, was shoveled for the purpose of drying. After heating and drying, the warm, dry and finely pulverized sand was run off into piles on the floor around the stoves from which it was shoveled upon an open 1/64" mesh screen and sifted into an open tank beneath. Particles too large to pass through the screen and other foreign waste material were thereafter shoveled into wheelbarrows and removed from the building. Prom the tank, the screened sand, as needed, was forced up through a pipe into a sand box located above the top of the locomotives in the coal wharf by means of a 100-pound pressure blower, from whence it was sent through a hose manually operated as needed to the sandboxes of the locomotives.

The jury were authorized to find that a substantial part of plaintiff’s duties during each work shift was to fire the stoves and to handle the sand during the details of its preparation and the operations required to transport it to its resting place in the locomotive sandboxes and that, during all of that time, he was required to work in more or less of a cloud of silica dust which enveloped him and which he necessarily inhaled. Con-cededly, defendant furnished for his use no protection against inhalation of the particles of silica by way of masks or other appliances or by way of mechanical devices in the sandhouse to clear the air of dust, without which, it was shown, reasonable protection from injury was lacking, nor warned plaintiff of the dangers incident to the inhalation of the dust. Negligence is charged against defendant in its failure to perform duties in those respects which it owed to plaintiff and in failure to furnish plaintiff with a reasonably safe place in which to work. Upon sufficient evidence, the jury have found, as a necessary incident to the work so required of plaintiff in the place and under the

The summons in this action was served on defendant on July 31, 1941. On August 21, 1941, plaintiff served his complaint. In due course, plaintiff served upon defendant a bill of particulars in which he described with greater detail and precision the injuries which he received while in defendant’s employ and the particular violations of duty by defendant which were the proximate causes of his injuries. The cause of action which was put in issue by the answer and upon which plaintiff relied and to which both parties exclusively directed their proofs at the trial has its foundation in the Federal Employers’ Liability Act (U. S. Code, tit. 45, ch. 2, § 51-60). It is there provided, among other things, that every common carrier by railroad while engaging in interstate commerce “ shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury .# * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * # * appliances, machinery, '* * * works * * * wharves, or other equipment ” (§51) and that an action to recover upon such liability may be maintained either in a proper State court or in a proper Federal court (§ 56). That defendant was engaged in interstate commerce as a common carrier by railroad and that plaintiff was in the employ of such carrier and engaged in such commerce at the time of his alleged injury are not disputed by defendant. The rights and obligations of the parties under that chapter, whether relating to questions of negligence, the weight of evidence, assumption of risk or contributory negligence on the part of the employee, depend exclusively upon the terms of the Federal statute, upon applicable principles of common law and upon the Federal decisional law (Jacobs v. Reading Co., 130 F. 2d 612 ; Second Employers’ Liability Cases, 223 U. S. 1 ; Seaboard Air Line v. Horton, 233 U. S. 492 , 501; C. M. & St. P. Ry. v. Coogan, 271 U. S. 472 , 474; Missouri Pac. R. R. v. Aeby, 275 U. S. 426 ; Toledo, St. L. & W. R. R. v. Allen, 276 U. S. 165 ; Bailey v. Central Vermont Ry., 319 U. S. 350 ). Over

The reversal of the judgment entered on the verdict of the jury in favor of plaintiff and the dismissal of upon the law by the Appellate Division were on the ground that plaintiff failed to show any actionable negligence on the part of defendant. The question of whether plaintiff presented a prima facie case entitling him to go to the jury is open to review here upon exceptions to the refusal of the trial court to grant defendant’s motion to dismiss the complaint at the close of the plaintiff’s case and again at the close of the whole case and to the refusal of the court to direct a verdict for defendant. A motion for a nonsuit or for a direction of a verdict may not be granted where the facts are in dispute or where the evidence is such that reasonable men may draw different inferences from undis

Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances. Decisions in other actions in which damages are sought for personal injuries furnish no criterion or guide for determination of what is or is not negligence in a particular case involving its own peculiar facts and circumstances. Under circumstances existing in one case the ordinary care required might not be the same as that required under other circumstances. Negligence arises from breach of duty and is relative to time, place and circumstance (Mink v. Keim, 291 N. Y. 300 , 304). Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect (Railroad Co. v. Jones, 95 U. S. 439 ; Bailey v. Central Vermont Ry., supra). It must be commensurate with known dangers. Defendant created the place in which the work was done and supervised the doing of the work by plaintiff and was

Evidence that some railroads furnished no such contrivances as plaintiff claimed were necessary for the use of men working under similar conditions or furnished similar places to work for men doing work similar to that required of plaintiff does not establish, as matter of law, that no such contrivances or no different place in which to work or no different appliances to carry on the work were required in the ease at bar in the of ordinary care. The ultimate question of fact was

Defendant urges on this appeal, as it pleaded in its answer and urged at the trial on the motions to dismiss and for a direction of verdict but did not urge in the Appellate Division, that the maintenance of the action is barred since it was not commenced within two years from the day the cause of action acprued (Federal Employers’ Liability Act, § 56 as it read until amended on August 11, 1939, to provide for a three-year limitation). In the state of the record, it is immaterial whether the statutory limitation is part of the substantive law or a bar to the remedy. In whichever way considered, the motion to dismiss on the ground that the maintenance of the action was barred by the statute was properly denied. The duty of defendant to furnish plaintiff with a reasonably safe place in which to work and reasonably safe appliances with which to do the work required of him with safety was a continuing non-delegable duty to the time plaintiff left the particular employment (Kreigh v. Westinghouse & Co., 214 U. S. 249 , 256; Bailey v. Central Vermont Ry., supra). The wrong committed coincided as to time with that duty. The injury gave rise to the cause of action and occurred before plaintiff left

Defendant urges tbat tbe trial court should have held as matter of law tbat plaintiff assumed the risks of bis employment. It cannot be held as matter of law tbat tbe injury for which plaintiff sought recovery occurred prior to August 11,1939. If it occurred after tbat date, it would seem tbat tbe doctrine of assumption of risk has been completely wiped out as a defense in an action brought by an employee of a carrier under tbe Federal Employers’ Liability Act (Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 ; 53 U. S. Stat. 1404, amdg. Federal Employers’ Liability Act, § 54). If tbe injury occurred prior to tbat date or if tbe decision in the Tiller case is not as broad as is indicated upon its face (Cf. Owens v. Union Pacific R. Co., 319 U. S. 715 ), tbe question of whether or not tbe plaintiff assumed tbe risk of bis employment was open to differing inferences by reasonable men and accordingly was one of fact.

Tbe judgment of tbe Appellate Division should be reversed and tbe case remitted to tbe Appellate Division for determination upon tbe questions of fact raised in tbat court, with costs in this court and in tbe Appellate Division to abide tbe event.

Judgment accordingly.