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HEALY v. NEW YORK

August 2, 1949

HEALY
v.
NEW YORK, NEW HAVEN & HARTFORD R. CO. et al.



The opinion of the court was delivered by: RYAN

Both defendants move pursuant to Section 1404(a), 28 U.S.C.A. to transfer this suit to the United States District Court for the District of Connecticut.

Jurisdiction over the Railroad Company is based on the Safety Appliance Act, 45 U.S.C.A. § 1, and the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; jurisdiction over The American Thread Company upon diverse citizenship.

Plaintiff, a resident of Connecticut, was in the employ of the defendant railroad. On January 2, 1947 while at work in Willimantic, Conn., his legs were crushed between a freight car and a building when the car jumped the track. The track, a siding adjacent to the loading platform of The American Thread Company mill was 'owned, operated, maintained and controlled' by the railroad. Plaintiff's injury, it is alleged was caused by defendants' negligence.

 The railroad has asserted two cross-claims against The American Thread Company, and it in turn has asserted a cross-claim against the railroad.

 The New York, New Haven & Hartford Railroad Company is incorporated under the laws of the States of Massachusetts, Rhode Island and Connecticut and is authorized to do business in New York. It expects to call more than fourteen witnesses all residents of either Willimantic or Hartford, Conn. Some of these are employees of defendant railroad and others are not.

 The American Thread Company is a New Jersey corporation authorized to do business in New York. It operates a large mill at Willimantic, Conn., the place of the accident. At trial this defendant expects that it will be necessary for it to produce at least twelve witnesses, employees of defendant and all residents of Connecticut.

 It is stated in the affidavits submitted on this motion that both defendants will have to transport these witnesses and keep some of them here for the duration of the trial, whereas if the trial were had in Connecticut these witnesses could be easily reached by telephone at their place of employment, thus alleviating a substantial burden on defendants. Both anticipate nor is it contradicted that the trial will take at least five days.

 Since plaintiff has not submitted proof of the identity and residence of the witnesses he intends to call it is fair to assume that they will be his fellow employees and residents of Connecticut.

 If the case were transferred to Connecticut it would probably be reached for trial before January, 1950. If retained here it would be reached no sooner, probably later.

 While defendants might have moved sooner for the relief now sought, there was a conflict of opinion as to the applicability of Section 1404 to claims of this nature, until Ex parte Collett, 337 U.S. 55, 69 S. Ct. 944, 959, was decided by the Supreme Court, on May 31, 1949. The motions are timely made.

 The convenience of the parties and witnesses in the interest of justice will best be served if this action is transferred to the District Court of Connecticut. Motions granted. Settle order.

 On Motion for Rehearing

 Plaintiff moves for re-argument of a motion previously made by defendants for an order transferring this action to the United States District Court for the District of Connecticut, under Sec. 1404(a), 28 U.S.C.A. The original motion was heard and argued on July 26, 1949 and opportunity for submission and further briefs and affidavits afforded all parties. The motion to transfer was granted. Re-argument of the motion was permitted because of the importance of the application, not only to this plaintiff, but to numerous railway employees similarly situated as plaintiffs in litigation pending in this court. Counsel was again heard and additional briefs and affidavits have been received and considered.

 Plaintiff, a railroad brakeman employed by the defendant railroad, filed this action in this court on December 30, 1947 to recover damages for injuries alleged to have been received on January 2, 1947 through the negligence of defendants. It is alleged that both his legs had to be amputated as a result of the ...


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