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BUFFO v. BALTIMORE & OHIO RAILROAD COMPANY (04/10/50)

April 10, 1950

BUFFO
v.
BALTIMORE & OHIO RAILROAD COMPANY, APPELLANT



Appeal, No. 114, March T., 1949, from judgment of Court of Common Pleas of Allegheny County, July T., 1946, No. 2406, in case of Joseph Buffo v. Baltimore & Ohio Railroad Company. Judgment affirmed.

COUNSEL

Vincent M. Casey, with him Margiotti & Casey, for appellant.

Albert B. Monaco, with him Frank J. Zappala, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stearne

[ 364 Pa. Page 438]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The sole question at issue is whether there was sufficient evidence to support the jury's finding of negligence on the part of defendant under the Federal Employers' Liability Act of 1908, as amended: 35 Stat. 65 (1908), 45 U.S.C. sec. 51, 45 U.S.C.A. 51 et seq., which provides: "Every common carrier by railroad while engaging (in interstate commerce) shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce... for such injury... resulting in whole or in part from the negligence... of such carrier...."

Under section 56 of the Act, Congress empowered state courts to entertain suits: Second Employers' Liability Cases, 223 U.S. 1. But the interpretation of the Act and its application to the facts of any particular case, in order to ascertain whether the plaintiff has been denied a right granted by Congress, is ruled by the decisions of the United States Supreme Court: Brown v. Western Railway of Alabama, 338 U.S. 294. Rights of recovery

[ 364 Pa. Page 439]

    authorized by Federal laws may not be defeated either by State law or practice: Davis, Director General of Railroads, Etc. v. Wechsler, 263 U.S. 22, 24; Brown v. Western Railway of Alabama, supra.

From the testimony, viewed in the light most favorable to plaintiff, it was established that plaintiff was employed by the defendant, a railroad company engaged in interstate commerce. Although plaintiff was not a riveter, he was ordered to do riveting work on the day of the happening of the accident. Defendant's employes were removing brakes on freight cars and substituting another type. As part of his work, it was necessary for plaintiff to crawl under a freight car and to operate in the confined area between the track bed and rails and the bottom of the freight car. Plaintiff was obliged to carry an air hammer weighing about ten pounds. In removing the old brakes, employes were required to burn off rivets and bolts, remove the old air containing cylinders, and install the new brakes by riveting new brackets in place. Defendant would remove the larger pieces of scrap which had fallen to the ground, but it permitted rivet heads, bolts and small pieces of pipe to accumulate on the tracks in and about the area where plaintiff was working. Such debris was removed only when repair crews found time to do so between jobs. On the day of the accident, rivet heads, bolts and other scrap were lying about the tracks and in the area where plaintiff was working underneath a gondola car. Before crawling out from under the car, he cradled the air hammer in his arms. While crawling out, it was necessary to prevent the air hammer from bumping against any other object otherwise a dangerous steel plunger would shoot out of the hammer. Plaintiff testified: "When I was coming out I was trying to watch the gun, to keep it from coming out, trying to be careful, and I had it in my arm, using my knees, and I put one foot over the rail, and seemed to slip on some

[ 364 Pa. Page 440]

    rivet heads or pieces of bolts, and this knee (indicating) banged on the side of the rail while I was coming out." The plaintiff's knee began to pain him excessively the second day after the accident. It became necessary to have an operation for osteomyelitis. ...


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