DELAWARE, L. & W. R~ CQ Vld TOMASCO
, Locke, Babcotk, Sprdtt & Hollister, of .Buffalo, N. Y. (Louis L.
Babcock, of Buffalo, N.. Y., of counsel), for plaintiff in error.
Charles :Oishei, of Buffalo, N. Y., for defendant in error.
' Before WARD, HOUGH, and MANTON, Circuit Judges.
MANTON, Circuit Judge.' On December 27, 1916, at about 6:10
p. m., the defendant in error, while in the service of the plaintiff in
error, as a handler of freight at its freight house in East Buffalo, 'N.
Y., sustained personal injuries, and seeks to maintain this action,
claiming that he was injured through the negligence of the plaintiff
in error and withoi t any 'fault on his part. It is conceded that the
plaintiff in error is a carrier engaged in interstate commerce, and that
at the time of his injury the defendant in error, too, was engaged in
work that had to do with interstate commerce. In the performance of
his work at the hour above stated, it became necessary to remove the
metal platform used as a passageway between the freight cars placed
on parallel tracks. and while the defendant in error was engaged in
this endeavor, he fell in the space between the two cars, as did the plat-
form; the latter striking him on his arm, causing him to receive se-
rious injury. It is alleged in the complaint, and the defendant in er-
ror sought to establish, that his injuries were brought about by reason
of the darkness of the place in which he was engaged in fulfilling his
work. The happening of his accident is described in his complaint as:
"And that by reason of the plaintiff being unable in the darkness existing
to control the movement of the said skid or in the said darkness to catch
himself on the sill of the door or opposite doorway, the plaintiff lost his bal-
ance and pitched headlong, together with the said heavy iron skid, downwards
in the space between said cars, falling heavily to the ground. and so severely
injuring his arm as to cause a compound fracture and breaking of the bones
of the said arm and permanently injuring the plaintiff."
It was further pleaded that the defendant in error requested the
foreman of the plaintiff in error to furnish a light at his place of work,
so as to afford him an opportunity to guard himself against injury
while in the performance of his work, and that the foreman neglected
and refused to furnish a light, and thus the hazards existing while in
the performance of the work to the defendant m error were increased.
The case was submitted to the jury by the District Judge upon the
theory that the negligence of the plaintiff in error might be established
in the failure of the foreman to furnish a lighted lantern as requested
by the defendant in error, and in failing to provide sufficient light so
that the defendant in error might perform his work with reasonable
safety to himself. -The questions of assumption of risk and contrib-
utory negligence were submitted to the jury as questions of fact.
The metal platform in question was 3x4 feet and about three-six-
teenths of an inch in thickness. It was used to bridge a space of about
30 inches between the two cars, so that freight might be trucked across
from one car to another. The defendant in error says he was on the
day shift and quit his work at about 5:30 p. m., and on the evening
in question was requested to do extra work, which consisted merely,
of removing the running board and closing the car doors, for which
. The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919.. Saint Paul, Minnesota. UNT Digital Library. http://digital.library.unt.edu/ark:/67531/metadc38827/. Accessed December 9, 2016.