Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
These cases arose out of a single accident to appellee. They were tried together and resulted in a judgment against each defendant for $29,000. That sum, it was agreed by all concerned, was assessed by the jury as appellee's total recovery. Both defendants appealed.
The Reading Belmont yard, Philadelphia, Pa., is an interchange point. Just east of it the Baltimore and Ohio tracks join the Reading tracks. Cars being delivered by Baltimore and Ohio to Reading are brought by Baltimore and Ohio engines to the yard for inspection and acceptance by Reading. At about 7:15 A.M., June 22, 1949, appellee Hartley, a Reading Company car inspector, was working in the yard when a Baltimore and Ohio train came to the junction point. On arrival the train conductor telephoned the Reading yardmaster who told him to place the cars at a specified location on track #3. The train moved into the yard but before it reached its designated location it made two stops because of yard conditions. The Baltimore and Ohio conductor said that these were at the orders of the yardmaster. Appellee testified that once the train passed the junction it was under the supervision of Reading. We are not concerned with the first stop. Hartley said that at the second temporary stop, he and his partner, as rear of the train inspectors, locked the switch behind the train and put out a blue flag. After that he waited ten minutes or more to allow the upper end inspector to put out a similar flag in front of the train and to lock the upper switch. He said that in the interval there was no warning of impending movement of the train. He then boarded the train at its last car. His instructions were that as soon as he boarded a train for inspection he was to apply the air brake by opening an angle valve on one of the cars. Such operation affected all the cars and prevented movement of the train. Hartley testified that he was unable to open the value at the rear end of the last car because its handle had been broken off. He made no endeavor to open the valve on any other car. He states that he went to the top of the last car and was checking its ice bunkers "* * * when the train pulled from in under me and over I went."
In No. 10,480 the appellant, Baltimore and Ohio Railroad Company, urges that reversible error was committed by the court below in charging the jury that, as against the Baltimore and Ohio, contributory negligence of the plaintiff, if any existed, "* * * would be no defense in whole or in part to his action, and he would be entitled to recover full damages for his injuries." The court did so charge as the result of a request on behalf of the plaintiff which construed the Proviso to Section 3 of the Employer's Liability Act*fn1 to mean that elimination of the defense of contributory negligence in a suit under that Act based on the violation of any statute enacted for the safety of employees is extended to apply to an action under the Safety Appliance Act*fn2 against a third party common carrier railroad, in this instance the Baltimore and Ohio. Actually the Proviso is expressly confined to an employee's suit against an employer as sanctioned by the Act. Section 3 is an integral part of the Federal Employer's Liability Act.The phrase in the section "such common carrier by railroad" refers to the employer railroad mentioned in Sections 1 and 2 of the Act.*fn3 The section goes on to say that contributory negligence of the employee does not bar a recovery but does diminish the damages proportionately and then follows the Proviso, "That no such employee * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee".
The Supreme Court categorically supports the above view. In Fairport, P. & E. Railroad Co. v. Meredith, 292 U.S. 589, 598, 54 S. Ct. 826, 829, 78 L. Ed. 1446, speaking of the Safety Appliance Act it said: "The act does not affect the defense of contributory negligence, * * *." And see Moore v. Chesapeake & O. Railway Co., 291 U.S. 205, 215, 54 S. Ct. 402, 78 L. Ed. 755. The express exception and the only exception is where, as above stated, an employee is suing his employer under the Federal Employer's Liability Act and violation of a safety statute enacted for the benefit of employees contributed to the injury. If, as appellee contends, conditions have come into existence which call for a change in the rule that is not a matter for this court but for the Congress.
The first count of the complaint against the Baltimore and Ohio was under the Federal Employers' Liability Act and alleged joint employment of Hartley by the Baltimore and Ohio and Reading. The second count seems intended to be a diversity action for negligence though it repeats paragraph 2 of the first count which asserts that the Reading was a joint employer of plaintiff. In any event the case against Baltimore and Ohio was tried and decided as a diversity suit and not under the Federal Employers' Liability Act. The only negligence finally pressed against Baltimore and Ohio was its alleged violation of the Federal Safety Appliance Act which as we have seen does not exclude the defense of contributory negligence. The court expressly charged that Hartley was not an employee of the Baltimore and Ohio and that the Federal Employers' Liability Act had no application to his claim against that railroad. The applicable state law was that of Pennsylvania and under that law contributory negligence is a valid defense though there has been a violation of a statute enacted for the safety of employees. See Price v. New Castle Refractories Company, 332 Pa. 507, 514, 3 A.2d 418.
There was evidence of Hartley's contributory negligence. At the time of the accident a certain "Blue Flag Circular" admittedly governed Reading car inspection safety precautions. This required: "Before performing work of any kind requiring employees to go under or between equipment, workmen engaged in doing the work must place a standard metal blue flag by day and a blue light by night a sufficient distance from each end of the equipment of near the clearance point at each end of the track, to insure full protection to those engaged in doing the work."
Hartley was familiar with the rule and, it will be remembered, had set out a rear blue flag. He had begun his work on the train without first ascertaining that the head end flag had been placed. He claimed that waiting a ten minute interval for the placing of the front flag without checking that placement was sufficient under Reading practice. The conflicting testimony was for the jury on the question of credibility. Hartley's conduct with regard to the angle valve was also evidence of contributory negligence to be decided by the jury. His instructions were to open such a valve as soon as he had boarded the train in order to insure protection against the cars moving. He says that he did not do this because the valve on the last car was broken off. He fails to explain why he did not open the one on the car ahead or on any other car.
The final argument against appellant's contention that elimination of its defense of contributory negligence was reversible error is that the jury by its verdicts determined that Hartley had not been guilty of contributory negligence. This conclusion derives from the proposition that the court instructed the jury in the Reading case that if Hartley was himself found to have been negligent then in the event of a recovery by him on the ground of Reading's fault, his verdict must be reduced proportionately with the degree of his negligence. And, says Hartley, since his verdict against Reading was in the same amount as the verdict in the Baltimore and Ohio suit where contributory negligence was excluded it must follow that the jury had found him free from blame in the accident.
These cases, though tried together for convenience, were separate causes of action. The claim against the Baltimore and Ohio resolved into an ordinary negligence suit. It was in the federal court because of the diverse citizenship of the parties though as it went to the jury the only negligence suggested was alleged violation of the Federal Safety Appliance Act. In that action the defense of assumption of risk was barred by the Safety Appliance Act.The defense of contributory negligence was erroneously excluded by the trial judge. If it had been allowed, as it should have been, and had been upheld, it would have defeated the claim. The Reading complaint was under the Federal Employers' Liability Act which excluded the defense of assumption of risk and allowed contributory negligence as a defense only in mitigation of damages.
The plaintiff was entitled to his full day in court in both these suits as was each defendant. A laudable effort was made by everyone concerned to save time and expense by disposing of the two actions at oen time but, as it worked out in this particular instance, it was unsuccessful. And we do not think that the error involved was cured by the verdicts.
The charge consisted primarily of reading the points submitted by counsel. Early in its course, the court read the Reading contributory negligence point to the effect that if the jury found plaintiff guilty of contributory negligence it must reduce his damages proportionately if there was a verdict in his favor. There was no reference in the point to the Reading suit or any attempt to confine the legal principle to that action. The court went on to explain and approve the point but did not mention that it applied solely to the Reading litigation. Later, the court directly charged that contributory negligence was no defense in the Baltimore and Ohio case and, as to the Reading suit, stated specifically that contributory negligence of the plaintiff must result in proportional diminishment of his damages should he obtain a verdict.
Had the issue of contributory negligence in the two suits been left that way with the early confusing statement regarding it having been clarified, the jury could be said to have been given understandable instructions that, 1. contributory negligence was no defense in the Baltimore and Ohio suit; 2. if the plaintiff was found guilty of such negligence in the Reading case and if there was a verdict in his favor that verdict should be reduced by the percentage of contributory negligence found. However, after the charge had been concluded, counsel for the plaintiff in the presence of the jury, said to the court: "If they [the jury] should find a verdict in favor of the plaintiff and against each defendant, then, let us say they agree that the damages suffered by Mr. Hartley were $2.00 - then their verdict would be against each defendant for ...