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MALONEY v. NEW YORK

December 13, 1949

MALONEY
v.
NEW YORK, N.H. & H.R. CO.



The opinion of the court was delivered by: NOONAN

This is a motion by the defendant for an order under Sec. 1404(a) of the United States Code, Annotated, transferring this action to the United States District Court for the District of Massachusetts.

The action has been brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and was commenced in this district pursuant to the provisions of Section 6 of said Act, 45 U.S.C.A. § 56.

 The plaintiff as administratrix of the estate of her late husband, James J. Maloney, has filed this action in this court to recover damages on her own behalf as his surviving widow, and on behalf of her infant child, for the decedent's death on July 27, 1948, at defendant's Freight Terminal, at Boston, Massachusetts, while he was acting in the defendant's employ.

 The defendant, in support of its motion to transfer, states that at the trial, it expects to have present the following necessary witnesses:

 (a) Five members of the switching engine crew which shunted the car which struck and killed the deceased.

 (b) Four surviving members of the switching engine crew with which the deceased was working when he was killed.

 (c) An assistant yardmaster, switchman and a freight conductor who were present in the yard when deceased was killed.

 (d) An assistant track supervisor who examined the scene of the accident afterwards.

 (e) A shop foreman who took measurements after the accident.

 (f) A car inspector who examined the car which struck the deceased.

 (g) Two draftsmen who made maps of the area of the accident.

 (h) A photographer who took pictures of the area of the accident.

 This is a total of eighteen witnesses, seven of whom defendant alleges are not now in its employ.

 Defendant's witnesses are said to live within a radius of 25 miles of Boston with the exception of one, who, it is stated, lives in Rhode Island. Defendant's counsel gives an estimate of three to four days for the trial of this action, and it would appear that such estimate is fair. It is further anticipated by defendant's counsel that such witnesses will have to come to New York and remain for a period of several days, involving expenditures for lodging, subsistence, lost pay and, in the instance of non-employees, travel costs. The court notes that the distance between New York and Boston is approximately 229 miles. Plaintiff argues that, while the defendant is not incorporated under the laws of New York, it does a substantial amount of its business in this district, and the office of its general counsel is located in New York City. Nevertheless, it is not denied that the plaintiff is a resident of Massachusetts, and plaintiff's counsel does ...


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