239 F2d 760 Rosillo v. Erie Railroad Company

239 F.2d 760

Dominick T. ROSILLO, Plaintiff-Appellee,


ERIE RAILROAD COMPANY, Defendant-Appellant.

No. 61, Docket 24089.

United States Court of Appeals Second Circuit.

Argued Dec. 4, 1956.

Decided Dec. 27, 1956.

William R. Meagher, of Davis, Polk, Wardwell, Sunderland & Kiendl, New York City (J. Roger Carroll, of Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, on the brief), for defendant-appellant.

Archie Elkins, New York City, for plaintiff-appellee.

Before CLARK, Chief Judge, and FRANK and LUMBARD, Circuit Judges.


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In order to show that the verdict and judgment for the plaintiff here under appeal was erroneous, defendant must demonstrate that it was not negligent, or plaintiff was contributorily negligent, as a matter of law in the accident causing the personal injuries for which the plaintiff has recovered. But we think that a jury issue was properly presented and resolved. Plaintiff, an independent trucker, was commissioned to deliver an 8,500 pound transformer from defendant's freight terminal in New York City to the consignee. On the loading platform defendant's agents used, in order to lift the rear end of the transformer, a lifting device known as a 'hilo' with a capacity of 3,000 pounds. In the course of the operation the transformer came down upon plaintiff's hand, causing serious injury. Under the attendant circumstances the jury could properly find that the defendant's agents were negligent in overloading the hilo, that this caused the injury, and that plaintiff lacked knowledge of the hilo's capacity and did not participate in its operation.