The opinion of the court was delivered by: KALODNER
This action was brought by plaintiff as administratrix under the provisions of the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16, the Boiler Inspection Acts, 45 U.S.C.A. §§ 22, 23, and the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., to recover damages for the death of the decedent, her husband, which occurred as a result of injuries sustained on February 2, 1944, in the course of his employment as a brakeman for the Baltimore & Ohio Railroad, the defendant. There is no question that the decedent came within the coverage of the Acts in so far as interstate commerce is concerned.
Upon the presentation of the plaintiff's case, the defendant moved for a directed verdict, which motion was denied. The defendant not having additional evidence to offer, and its request for binding instructions having been denied, the cause was submitted to the jury accordingly. A verdict was returned for the plaintiff, awarding damages in the amount of $ 9,000.
The defendant now moves for a judgment n.o.v., basing the motion upon alleged error of the Court in submitting two issues to the jury's consideration. The issues presented for determination at this time, therefore, are narrow.
A statement of the admitted facts and allegations at this point is a desirable preface to the statement of the alleged errors.
The accident which resulted in the death of Valentine Raudenbush occurred in the progress of a shifting operation in the defendant's East Side freight yards at 36th and Jackson Streets, in Philadelphia, at about 10:53 p.m. on February 2, 1944. This operation consisted in the shoving of nine freight cars in on a track referred to as 'short 29', coupling them to five cars already there, and awaiting the arrival of train No. 97 from the Delaware river piers, to which the train of 14 cars was to be coupled.
The crew for this operation was comprised of an engineer, Meehan, a fireman, Sheffield, a conductor, Steward, and two brakemen, Lane, and the decedent: The crew, except for the engineer, who operated on hand signals, was instructed by conductor Steward to accomplish the operation described.
Keeping in mind that the jury found for the plaintiff, the circumstances surrounding the decedent's fatal injuries are as follows. When the nine cars had been shoved onto 'short 29' and coupled to the five already there, the rear brakeman, Lane, signalled the engineer an 'O.K.' with his lamp and began walking west toward the engine. The train lay in an east-west position, the engine being west of the freight cars. The conductor, Steward, was walking toward the yard office for further instructions when he stopped to talk to a yard foreman. At about that time, he noticed a slack signal given to the engineer by Raudenbush, for the purpose of enabling Raudenbush to uncouple the engine from the train. The engine, when cut, moved back about 10 to 15 feet to lay there, but the cars began to roll eastward at the rate of about a half mile per hour. Lane noticed the movement, climbed onto the second car from the engine, a box car, and proceeded across the catwalk with the intention of applying the brake at the west end of the car. The conductor had shouted to the engineer to couple up again, and ran alongside the engine just in front of it. As the engine began to move, the bright headlight facing the train of cars was turned on. Raudenbush had run to the east end of the first car from the engine, a gondola, apparently to set the brake there. As the light came on, Steward, running before the engine, noticed a form under the gondola and immediately signalled the engine to stop. Lane succeeded in stopping the rolling cars, although they had moved one car length before the brake was applied and about two after. Lane, it should be noted, saw a lamp falling between the east end of the gondola and the west end of the box car at about the time he reached the brake of the latter car.
There had been a light snowfall the evening of the accident, ending at about 9:30 p.m. This left a thin layer of snow on the brake step or sill of the gondola, and these were skid marks on this brake step or sill. The plaintiff also attempted to prove that there was ice under this thin layer of snow. Although repetitious, it is important to note that the headlight of the engine was not turned on until Steward shouted to the engineer to move ahead to couple again.
At this time, the contention of the plaintiff is that the decedent slipped on the brake step, and that the proximate cause of the accident was the presence of ice or snow on the step as well as the failure of the engineer to have the engine headlight on so as to permit the decedent to see.
It was left to the jury to determine whether there was ice or snow on the gondola brake sill, whether the defendant was negligent in failing to remove the ice and snow if any were there, and whether the presence of either element was a proximate cause of the accident. It was also left to the jury to determine whether the engine light should have been on, and if whether the failure of the engineer to have the headlight on was a proximate cause of the accident. The jury was charged in so far as we are here concerned, with returning a verdict for the plaintiff either if it found that the presence of ice or snow was the proximate cause of the accident and that the defendant was negligent in failing to remove the ice or snow, of if it found that the engine light should have been on and that the failure of the engineer to have the headlight on was the proximate cause of the accident.
The defendant's motion for judgment n.o.v. is predicated on the contention that in view of the evidence, neither issue should have been submitted to the jury: as to the presence of ice, because the evidence was insufficient, and in any event, because the defendant was not under a duty to remove ice or snow from the equipment involved; as to the sufficiency of light, because the engineer was not bound to have the headlight of the engine on, and in any event because the failure to have the headlight on was not the proximate cause of the accident.
As a guide to the disposition of the questions involved, certain well-settled precepts are worth repeating. Under the Federal Employers' Liability Act, the carrier is liable only where its negligence was the proximate cause of the injuries to its employee, or his death, Northwestern Pac. R. Co. v. Bobo, 1934, 290 U.S. 499, 54 S. Ct. 263, 78 L. Ed. 462. In this connection, 'The rule as to when a directed verdict is proper * * * is applicable to questions of proximate cause.' Brady v. Southern R. Co., 1943, 320 U.S. 476, 483, 64 S. Ct. 232, 236, 88 L. Ed. 239. Negligence is determined by the applicable principles of common law as established and applied by the federal courts. Although it is frequently stated that the employer has a duty to furnish its employers with a reasonably safe working place, and that duty is a continuing one. Bailey v. Central Vermon Ry., Inc., 1943, 319 U.S. 350, 352, 63 S. Ct. 1062, 87 L. Ed. 144. But the employer is not the insurer of its employees' safety. Baltimore & O. Southwestern R. Co. v. Carroll, 1930, 280 U.S. 491, 496, 50 S. Ct. 182, 74 L. Ed. 566. However, it should be noted that the commonlaw concept of 'assumption of risk' is completely abrogated by the present Act. Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967.
The plaintiff suing under the Federal Employers' Liability Act, therefore, has the burden of proving against the carrier negligence which was the proximate cause of the injury or death, and in this respect 'The weight of the evidence under the Employers' Liability Act must be more than a scintilla before the case may be properly left to the discretion of the trier of fact -- in this case, the jury.' ...