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Bernardo v. Delaware

Decided: September 16, 1943.

ANDREW DI BERNARDO, PLAINTIFF-APPELLANT,
v.
DELAWARE, LACKAWANNA AND WESTERN RAILROAD CO., DEFENDANT-RESPONDENT



On appeal from a judgment of the Passaic County Circuit Court.

For the plaintiff-appellant, Ward & McGinnis and Louis C. Friedman.

For the defendant-respondent, John A. Laird.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of nonsuit entered after a trial in the Passaic County Circuit Court, in a suit under the Federal Employers' Liability Act.

Plaintiff-appellant was a freight trucker employed by the defendant railroad company, and alleged that he suffered injuries while unloading freight in interstate commerce and that his injuries were due to the negligence of the defendant. In an amended complaint plaintiff alleged, among other things, that defendant failed to provide a safe place for the work; that defendant failed to provide proper assistance or safe and necessary means to do the work; that proper supervision was lacking; that plaintiff was not informed of the dangers incident to the work; that plaintiff was directed to use a two wheeler hand truck in place of a six wheeler hand truck for the removal of a large and heavy iron wheel or instrument; that defendant instructed plaintiff that the two wheeler hand truck was sufficient and ample for the removal of said wheel; that, by reason of negligent supervision, control and management, while plaintiff was in the act of lifting and removing the wheel, the said "wheel came violently in contact with the body of plaintiff;" that defendant allowed incompetent help and superintendents to direct the work, and negligently gave no warning to permit plaintiff to protect himself from injury, and improperly permitted plaintiff to remove the "contents from the freight car so that the same slipped, fell and came in contact with the plaintiff causing him to be seriously, painfully and permanently injured."

The plaintiff had been employed by defendant as a freight handler from 1914 to December, 1937. The injury was alleged to have been sustained November 8th, 1937, and he testified that he did light work for about two months. The plaintiff was the only witness to the alleged accident, no other testimony being contained in the state of the case. His

testimony is not very clear, but it appears that he, together with four other men, and under the direction of a foreman named McMasters was engaged in unloading a gear wheel from a freight car. Four of the men were lifting or had raised up the gear and the fifth was attempting to slide a two wheel hand truck under one side of it. Two men were on one side of the wheel and two one the other. The purpose was to place the gear wheel on the truck to move it from the car. Plaintiff testified he told the foreman that "it was not fit to use on the two wheel truck." He further testified that "it was too large to handle" on a two wheel truck and that it was the practice "to use the six wheeler for big sized objects."

He further testified:

"Q. Now, how high do you have to lift that gear wheel to put it on a six-wheel truck? A. Twelve inches. About a foot.

"Q. About a foot? A. Yes.

"Q. How high do you have to lift it -- did you have to lift that gear wheel in order to get it onto the two ...


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