Before BIGGS, Chief Judge, HASTIE, Circuit Judge, and HARTSHORNE, District Judge.
The plaintiff, as administratrix of the estate of her husband, John B. Patton, and as trustee ad litem for her own benefit and for the benefit of the five minor Patton children, brought suit against the Baltimore & Ohio Railroad Company seeking compensation for the death of her husband as a result of negligence on the part of the defendant with respect to the maintenance of brakes on its railroad cars.
Suit was first instituted in the Court of Common Pleas, Allegheny County, Pennsylvania, but on March 8, 1950 was removed to the District Court for the Western District of Pennsylvania on the grounds of diversity of citizenship.*fn1 On November 2 the court below permitted an amendment of the complaint so as to include an allegation that the defendant was negligent "(1) In violating the Safety Appliance Acts of Congress." On the same day the court below, on B & O's petition, directed the addition of Duquesne Slag Products Co. as a third-party defendant. Duquesne appeared and answered the third-party complaint. The plaintiff's complaint contained no allegations of negligence on the part of Duquesne,*fn2 nor was the complaint amended to set forth any cause of action against Duquesne.*fn3 The plaintiff has pleaded no case of action against Duquesne. Only B & O has set forth such a cause of action.
The trial resulted in a verdict in favor of the plaintiff against both B & O and Duquesne in the sum of $65,000. Taking the inferences most strongly against the defendants, as we must, the following facts appear. The accident occurred on the afternoon of August 5, 1949. Patton's death was caused by four runaway B & O gondola cars which collided with eleven other cars parked downgrade on unloading tracks owned by Duquesne. Patton, a Duquesne bulldozer operator,*fn4 who was temporarily employed in repairing one of the parked cars, was caught in the collision and his body was severed near the waist by a car wheel. The four B & O cars were marked "For Slag Service Only". They had been placed on Duquesne's siding by B & O before dawn on August 5 as part of a slag train delivered daily. The cars had been loaded with slag at Jones & Laughlin Steel Co., located on the Monongahela Connecting Railroad, and were transferred to B. & O by that carrier. The cars were part of a group of cars similarly marked and used for the purpose of disposing of Jones & Laughlin's slag to Duquesne and to Perini, another contractor. An inspector, not designated by name, but paid jointly by B & O and the Monongahela Connecting Railroad, made a report of his inspection of the cars at the interchange between these carriers. The inspector was not called to the stand but his report was introduced in evidence and showed that no visible defects in the braking apparatus of the cars had been noticed.
B & O conveyed the four cars to Duquesne's tracks. B & O employees set all the handbrakes, "bled" the air from the airbrakes, which in addition to the handbrakes of course served to apply the brake shoes on the cars. B & O employees then left the cars and, insofar as is pertinent here, that railroad had no further connection with the cars prior to the accident.
About 8 A.M. Vibock, an employee of Duquesne who inspected the cars in order that Duquesne might be protected from liability for any damages which might be incurred while the cars were not in Duquesne's possession, made an inspection but found no defects in the brakes. But Vibock was not required to make any test of the brakes. He was required only to observe such visible defects as broken chains or bent handles.
About 10 A.M. Duquesne employees using a Duquesne engine moved the four cars from the delivery track to an unloading track on Duquesne's premises. The unloading track was one which was on an ascending grade of undetermined degree.*fn5 The engine pushed the cars up this track to an unloading point. At the unloading point the airbrakes were set, the handbrakes tightened manually with the added leverage of a brake club, and a block of wood was set under a front wheel of that car which was farthest downhill. The air from the airbrakes was not "bled off" as had been done when the cars were delivered to Duquesne by employees of B & O. Nor were the retainer valves on the cars, designed to aid the retention of the air in the airbrakes, set for this purpose. The Duquesne engine and its complement of engineer and brakeman then left the cars and proceeded on other business.
At the unloading point a clam bucket crane stood ready to scoop slag from the cars.*fn6 The bucket of the crane weighed about 500 pounds. A block had already been placed under one front wheel of the car farthest downhill. Hapchuk, the crane operator's helper, placedan iron skate under another wheel. The skate was pressed tight against the wheel but the wheel was not pushed upon the skate. Hapchuk also placed four-cubic-inch blocks under a wheel of each car except the car which was farthest downhill. Stewart, the operator of the crane, then unloaded the slag by lowering the clam bucket within three or four inches of the slag, dropping it the remaining distance and scooping out the slag. Stewart testified that some little vibration occurred during this process but that he never hit the side of any car and nothing was done which "could have caused" the cars to move.
By 1:45 P.M. three of the four cars had been unloaded. After the clam bucket was put down to take its first "bite" from the fourth car the cars began to move. Hapchuk threw a wooden block under the wheel of the last car. This block splintered. Two nearby workmen mounted two of the moving cars and attempted to tighten further the handbrakes on these cars. They jumped off when they found they could not do so. The cars rolled 700 feet and collided with the cars among which Patton was working. When the cars were brought to a halt the front car had run up upon its skate and the blocks had either been "jumped" out of position or splintered.
The plaintiff introduced ten witnesses, all employed by The Monongahela Connecting Railway in its assembly yards prior to and including August 5, 1949, to prove the inefficiency of the brakes. The ten stated they were inspectors, conductors, or brakemen. They stated they were familiar with the practice or were themselves required several times daily to "hump"*fn7 B & O cars marked "For Slag Service Only", and that none of these cars had adequate handbrakes. It was conceded that the brakes would slow down a car but the ten witnesses were most positive in their statements that the brakes could not be relied upon to stop even an empty car. One of the ten stated it was his practice in handling B & O cars "For Slag Service Only" to use a "B & O brake", viz., a block of wood, and that when he first went to work he was told by a fellow employee "* * * not to bother putting the brake on. * * *" Others of the ten testified that in assembling trains of slag service cars the braking power of an engine was used, and if no engine was employed as a brake the men employed the handbrake to slow down the cars but jumped off before the moment of impact between the humped cars and the cars at rest. It would be difficult to imagine stronger testimony as to gross insufficiency of handbrakes. As to the airbrakes on the cars in the pool marked for "Slag Service Only", there was no record of inspection of cleaning since their installation by order of the I.C.C. in 1944.
A contnuing objection was interposed by B & O to the testimony as to the braking efficiency of the cars marked "For Slag Service Only" on the ground that this was both irrelevant and prejudicial since it was not directed specifically to the four cars spotted at Dupuesne but to all the cars in the pool. We think it could have been more clearly proven that the four cars involved in the instant suit were the cars handled by the Monongahela employees.*fn8 Yet that fact was sufficiently established. Nicotra, a Monongahela conductor, testified that Monongahela handled only two types of slag cars, hoppers carrying granulated slag to the Pennsylvania Railroad and gondolas carrying the rough slag to B & O. He said that rough slag, such as was here being unloaded, was transported only in B & O gondolas marked "For Slag Service Only", and that only B & O cars were so marked. Bistolas, yard clerk for B & O, proved from that railroad's records that the four cars here in question, Nos. 251049, 251885, 255056, and 256339, were received from Monongahela destined for Duquesne shortly before August 5. Duquesne records disclosed that in the year prior to August 5, 1949, the four cars had made many round trips between Duquesne and Jones & Laughlin.*fn9 Harekal, a brakeman employed by Duquesne, stated he handled B & O cars marked for "Slag Service Only" "* * * about three times a day * * *". From this testimony it can be inferred that these four cars were part of the pool. The conclusion is almost irresistible that the four cars were part of the B & O group marked "For Slag Service Only" and were handled by the Monongahela witnesses. It would be entirely unreasonable to require trainmen to remember and to testify to six digit numbers on cars.
The record contains no proof of any specific mechanical defect in the brakes of the four slag cars. It was established by interrogatories and answers thereto that the cars were built and put into service between 1922 and 1925, that they were originally equipped with type "K" airbrakes, that in 1944 these brakes were changed to type "AB" by order of the I.C.C. The cars had "Horizontal wheel tightening type hand brakes." But B & O had "No records available" of any airbrake or handbrake inspection or repair since construction except the inspection for the visible defects made by the inspector jointly employed by B & O and Monongahela hereinbefore referred to. There was likewise no record of any test of brakes for operating efficiency. The plaintiff introduced into evidence subsection (m) of Rule 60 of the American Association of Railroads requiring cleaning of "AB" airbrakes every three years, and Rule 7 which requires appropriate records thereof to be kept for one year at the points where the repairs are made. Hollen, locomotive engineer for Duquesne, testified that other cars marked like the four had run away on more than one prior occasion. Harekal, the brakeman, said that in initially setting the brakes he had done all he could to set the brakes on the four cars and that "* * * the brakes wasn't sufficient for them cars. * * *" This last statement is incontrovertible and the jury was entitled to find this as a fact.
Hodgson, a B & O locomotive engineer who delivered the cars to Dequesne's siding, stated that in his opinion the brakes were not set by Duquesne employees as tightly as they might have been. He stated it was his practice not only to make sure that handbrakes were applied by brakemen using the additional leverage of a brake club while air pressure remained applied to the brakeshoe, thus giving a tight set to the handbrakes, but also to "bleed off" the air. He stated that the bleeding process takes up some slack in brake chains and that the tightest set possible is advisable for the handbrakes constitute the sole braking power after the engine departs for the air in the brakes will leak out in time. Hodgson refused to state how long air could be relied on to remain in good brakes. His estimate was "* * * one hour to a week." This testimony was disputed by Bone, an experienced conductor of the Union Railroad, also testifying as an expert, who stated that bleeding adds nothing to ...