For the plaintiff-appellant, Edward W. Haines.
For the defendant-respondent, John A. Hartpence and James R. Laird, Jr.
The opinion of the court was delivered by
CASE, J. The appeal is by plaintiff from a judgment of nonsuit entered in the Supreme Court following the presentation of her case before a jury at the Ocean Circuit.
Decedent was employed by the Pennsylvania Railroad Company to tend the drawbridge and trestle over Barnegat Bay between Ocean Gate and Seaside Park. On the night of January 5th, 1943, he had a six o'clock supper at home. Shortly after ten o'clock he started for night duty, taking a lunch with him. He was not seen alive after that time. It is evident that he reached his destination and entered upon his work because, among other incidents, there was a record, kept under company orders and signed by him, noting that he had raised the signal at eleven o'clock. The raising of the signal was part of an operation which consisted of closing the draw so that trains could pass and of raising the signal to inform engineers of approaching trains that the bridge was ready for railroad traffic. No further performance of duty by Cowdrick was proved. The record, according to rules, should show bridge movements and boat movements.
There was no other entry that night, and so far as appears no boats sought or were refused passage. Cowdrick's absence was discovered the following day. His body was found beneath the trestle under the surface of the water, caught between two pilings near the concrete abutment which served as a base for timbers supporting the trestle and the bridgetender's shanty. The body was clothed in an overcoat which was buttoned, a pair of canvas gloves, and other ordinary clothing, including stockings, except that it was without hat or shoes. One of Cowdrick's shoes, dry but showing a stain from oil or grease on the sole as well as marks of scraping, was lodged on a part of the bridge timbering above the concrete and about in a line, vertically, with the point where the shanty platform ends and the trestle continues. An autopsy disclosed that death was caused by a fractured skull and consequent injury to the frontal lobe of the brain, with inhalation of water into the lungs as a contributing factor. There was no lighting fixture at the shanty. However, Cowdrick had held the job for twelve years, was thoroughly familiar with the surroundings and had a lantern which was found in the water near the body. His lunch, wrapped and uneaten, and the accompanying thermos bottle of coffee, untouched, were found in the shanty. There was evidence tending to prove that the fatality had occurred sometime during the night.
The shanty was a small one room structure adjacent to and on a level with the stringpiece of the trestle and connected therewith by a platform. On the drawbridge was a device which operated a train signal located about five hundred feet to the west and beyond the shanty. The operation was by a long rod formed by coupling one inch pipes, end to end, reaching from the machine to the signal. The movement of the rod forward eight inches set the signal one way, and the pulling of it back for the same distance set the signal in reverse. The rod paralleled the tracks at the outer edge of the ties and was held in place by occasional small contrivances, called "carriers," fastened to the trestle. The carriers were in effect metal rings with small interior revolving rollers upon which the rod moved. Appellant's brief
asserts that the rod was oiled, but that is not the testimony. The carriers or their rollers were sometimes oiled, as were the other moving parts of the bridge. The rod, supported by two or three carriers, passed over the shanty platform parallel with, and a few inches from, the stringpiece. At each end of the platform was a railing, the top rail of which as it left the shanty was parallel with the platform but at a distance of several feet from the shanty slanted sharply to meet the platform level at the location of the signal rod. At the westerly end of the platform and some inches below the level thereof were two insulated wires, one of which was found pulled loose from its insulator, in a location about a foot or two above a bridge timber on the end of which there was a "scraping" mark.
The suit was brought by the decedent's widow under the Federal Employers' Liability Act, title 45, chapter 2, sections 51, et seq., of the U.S. Code; therefore plaintiff was under the duty of proving that the death was due to the negligence of the defendant company. The trial court held that there was proof to warrant a finding that the decedent arrived at the bridge sometime during the night of January 5th, 1943; that after he arrived there he had a fall from either the trestle or the platform down to the substructure and that he met death from a fractured skull, but that there was no proof as to how the decedent fell or as to the cause of his fall or as to whether he fell from the trestle or the platform; that a finding of negligence would necessarily involve a degree of speculation which the proofs did not justify and that consequently the plaintiff should be nonsuited.
The substance of appellant's argument on proof of negligence runs in this wise: The wire, disconnected from its glass insulator, the mark of scraping on the beam-end, the shoe found at a lower level, the body with injured head, and the lantern near-by sustained a deduction that Cowdrick fell in that approximate location; and, thus far, the argument is sound. But from this point the argument rests on conjecture rather than on proof or permissible inferences. The absence ...