The opinion of the court was delivered by: WATSON
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., to recover damages for personal injuries sustained by the plaintiff while employed by the defendant at its Engine House in Scranton, Pennsylvania.
At the trial of the case the defendant filed a motion for a directed verdict at the close of plaintiff's case and once again at the close of defendant's case, both of which motions were denied. The case was submitted to the jury and it returned a verdict in favor of the plaintiff in the sum of $ 21,500. Defendant now moves to set aside the verdict and to enter judgment for defendant, and in the alternative for a new trial.
The plaintiff was employed by the defendant as a machinist, and on October 25, 1950, was engaged with other employees of the defendant in removing Engine 1244 from one of the stalls in the roundhouse where it had been undergoing repairs. The engine was on tracks placed over a pit which ran lengthwise under the engine and between the rails for the length of the train. The pit was about 4 1/2 feet in width and about 3 feet in depth. There was a cross pit, also known as a drop pit, more or less perpendicular to the pit running lengthwise under the engine. The cross pit was 7 feet wide and approximately 80 feet in length and ran underneath the four stalls on which engines were placed for repair.
The No. 3 wheels of Engine 1244, which are toward the rear, had been dropped below the normal level of the rails for repairs and were hanging down into the cross pit. To move the engine out of the stall it was necessary to have the wheels raised and rails placed under the wheels and over the cross pit in order to bridge the gap in the tracks. Inside the cross pit was a drop-table which could be used to accomplish this. The drop-table was about 7 feet wide and 10 feet long, and could be moved up and down under the engine, as well as along the length of the cross pit to the other stalls. On top of the drop-table were rails, and when the table was raised, it being about 4 1/2 feet below the normal level of the rails, the rails on the drop-table filled the gap in the area over the cross pit.
On the evening in question, however, the drop-table could not be elevated because the electric motor used to supply power for it was burned out, and it was therefore necessary to resort to another method to accomplish the same task. Mr. Mc.Dermott, the general foreman of the roundhouse, told Mr. Wrabel, the assistant foreman, to 'jack the wheel up'. About 8:30 P.M., Wrabel went to the plaintiff, who was at that time working on Engine 259, and told him of this and asked the plaintiff, 'How do you get about that?' The plaintiff suggested that it could be done by placing a block and jack on the table under the wheel to raise it, and then put in dead rails to bridge the cross pit. Wrabel then told the plaintiff and his two helpers, Yanoski and Joyce, to leave the job they were doing and come over to Engine 1244.
The plaintiff and his two helpers secured blocking and brought it to the engine in a battery truck derrick. Plaintiff placed the chain from the derrick around the block and lowered it down to the drop-table where Wrabel and another employee, Volinsky, placed it under the engine, and on top of another block already there. Plaintiff then lowered the jack to the same two men, who with the aid of the derrick placed it on the block under the axle. The jack was operated by air pressure so the plaintiff next handed the air hose to the men in the cross pit and it was attached to the jack. When the men on the drop-table were ready, plaintiff turned on the air to raise the jack. The jack raised the wheels but they immediately dropped down again. Plaintiff went under the engine and found that a piece of soft wood 7 x 10 x 14 placed under the jack had been crushed from the weight of the wheel, which weighed about 6 or 7 tons. With the aid of the chain hook from the derrick, the jack was rolled on the table and the crushed block was removed. Plaintiff and one of his helpers got a new block of wood 12 x 12 x 3 and lowered it down to Wrabel and Volinsky who put it in place on top of another block. The chain hook from the derrick was again lowered into the cross pit by the plaintiff; Wrabel, Volinsky and another machinist, Macindoe, set the jack on the block. Plaintiff then went down into the cross pit again and under the engine, where he found Valinsky holding the jack with one hand. Plaintiff gave him a hand, and the block was wobbling. There was a space of about 8 inches between the top of the jack and the binder, and Wrabel said, 'We ought to have more blocking, something else on top of the jack'. Plaintiff then asked the workers, 'Anything out there, any heavy blocking out there?' One of the workers handed plaintiff a steel knuckle pin, 4 to 5 inches in diameter and 8 inches long and weighing about 25 pounds. Plaintiff handed the knuckle pin to Wrabel, who replied, 'That will do' and placed it on the jack. Plaintiff then suggested they put some waste above and below the knuckle pin to prevent slipping.
We now approach the nub of the case on the question of negligence. Plaintiff then suggested to Wrabel, the assistant foreman, 'We better level this blocking'. It appears that the jack was resting on the 12 x 12 x 3 block spoken of earlier, which in turn was resting on another 'big' block. The 12 x 12 x 3 block was not level on one end, and the jack had to be held to prevent it from falling off. Plaintiff wanted to get some washers to place underneath the end of the jack where it was away from the lower block, but Wrable said, 'That will be all right when the weight is on it'. Plaintiff disagreed and said, 'It won't be all right when the weight is on it'. Wrabel replied, 'It will be all right when the weight is on it. We haven't got much time. We want to get the engine out of here tonight'. Plaintiff said, 'Let us take time and do the job right. It will only take a few minutes. It will be safer. Somebody is liable to get hurt or killed. This is a pair of wheels we are jacking up'. Wrabel repeated, 'It will be all right when the weight is on it'. Plaintiff said, 'O.K. you are the boss. Jack it up'.
The jack started to go up and the blocking where it was not level moved up somewhat. After the wheel moved up part way, plaintiff said, 'Hold it', and Wrabel wanted to know what was the matter. Plaintiff said, 'We have no blocking here to block under those boxes'. Apparently blocking had to be placed between the journal and the binder in order to hold the weight of the journal and the wheel once the wheel was raised. Plaintiff and Joyce left the cross pit to secure the blocking and returned in about ten minutes. Plaintiff got under the engine again and placed blocking under the boxes on both sides of the journal. Plaintiff then said, 'O.K., jack it up. I am ready'. When the wheels were raised to the full height, they were stopped and plaintiff placed more blocking in on top of the binder and underneath the box on the back end of the journal, and Wrabel did the same on the front end of the journal.
When the blocking was in, plaintiff started to get out from under the engine and was hit. He stated, 'It sounded like a big explosion-bung. That was all I know'. The knuckle pin on top of the jack had slipped out of position and struck the plaintiff in the head with great force and causing serious injuries. At the time the knuckle pin came out of position it was on the jack at a point about 5 to 6 feet above the surface of the table. After the accident it was picked up from the drip-table about 2 feet away from the base of the jack.
Motion to Set Aside the Verdict and Enter Judgement for Defendant.
I. There was no evidence of negligence on the part of the defendant.
Defendant first states that there was no direct evidence of the cause of plaintiff's injury, because there is no direct evidence of what caused the knuckle pin to slip out. This Court, however, feels that there was substantial evidence from which the jury could have and must have inferred that the knuckle pin slipped out of position because of the failure to level the blocking, as plaintiff had requested, before raising the jack. Such an inference was a reasonable one and not one of mere conjecture.
II. The plaintiff cannot shift the responsibility for his injury to the defendant by saying that he was directed to give the orders to raise the jack.
As an adjunct to its contention that it was plaintiff's own conduct which was the sole proximate cause of the accident, in that plaintiff gave the orders to raise the jack, defendant states that plaintiff cannot attempt to avoid the consequences of his conduct in giving the orders by saying that he was following the orders and directions of Wrabel, the assistant foreman. The Court repeats its position taken above that it was not the raising of the jack which created the danger, but rather the failure to properly level the blocking. Furthermore, the Court cannot agree with defendant's contention that Wrabel surrendered all his authority as assistant foreman to the plaintiff and that plaintiff was really the boss. Wrabel by his own testimony admitted that he was the boss at that time. His refusal to level the blocking, as requested by the plaintiff, also is evidence of the fact that he did not surrender his authority to the plaintiff in this particular task. Defendant's argument also ignores reality. Though an employee may take the initiative on a job, nevertheless, the final decision or approval rests with his superior. The fact that plaintiff had more experience as a machinist than the assistant foreman did not endow him with greater authority than that possessed by the assistant foreman. It would be improper, to say the least, to require an employee who is more experienced than his superior to assume the responsibility for any work which is deficient, but reward his superior for that which is proficient. The responsibility for directing and supervising the performance of the work rested with Wrabel, the assistant foreman, and the plaintiff was at that time working under the direction and subject to the orders of Wrabel.
III. The plaintiff acted voluntarily.
Defendant states that even if it should be conceded that the foreman was in charge of the work and that plaintiff was working under his direction and supervision, there is still no liability upon the part of the defendant because the plaintiff acted voluntarily, i.e., he was fully aware of the danger before he gave orders to raise the jack and was free to act as he saw fit.
The 1939 amendment to the Federal Employers' Liability Act, 53 Stat. 1404, 45 U.S.C.A 54, provides that an 'employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier'. Admittedly, the defendant does not say the plaintiff 'assumed the risk'; instead, the defendant says the plaintiff acted voluntarily and so the defendant is relieved of any liability. It is evident, however, that defendant is simply charging plaintiff with assumption of the risk under another name. In Tiller v. Atlantic Coast Line Railroad Co., 1942, 318 U.S. 54, 63 S. Ct. 444, 446, 87 L. Ed. 610, the Supreme Court stated: 'We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the ...