New York Cent. R. v. Gapinski , 249 F. 346 ( 1918 )

HOUGH, Circuit Judge

(after stating the facts as above). It is we think sufficient to dispose of this writ to refer- to Smith v. Pennsylvania R. R. Co., 239 Fed. 103, 151 C. C. A. 277. We there pointed out that, where there was no proof that any definitely indicated thing wrought the injury complained of, nor “that the circumstances rendering it possible for the injuring thing suggested [by plaintiff] to reach or touch [plaiutiff] existed at the time and place of damage,” any verdict resting on such evidence, or lack of it, would he building one presumption upon another.

In that case the suggested instrument of injury was the swinging rake hook of a passing locomotive. In this case the suggested cause of plaintiff’s hurt is a door hanging or projecting below the car body to which it belonged. But in the Smith Case there was no evidence whatever that any rake hook was projecting at the time when and place where plaiutiff was injured. ..In this case there is direct evidence that not one, but several, if not many, cars having such unusual and dangerous projections were moving upon the track alongside of which the plaintiff here was required to work.

If the jury believed (as it did) this positive testimony of moving crippled cars, it was within their province to draw the inference that such proven projection did the hurt. In the Smith Case there was no proven projection. We think the case cited and the present one (considered together) perfectly illustrate the difference between a legitimate presumption from proven facts, and an attempted and unlawful presumption from another presumption.

Judgment affirmed, with costs.