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July 28, 1954

Jesse Q. CASSO,

The opinion of the court was delivered by: WILLSON

The jury gave Jesse Q. Casso, the plaintiff, a verdict in the sum of $ 72,000. Plaintiff was a track worker in the employ of defendant. Shortly after 1:00 a.m., on the morning of June 26, 1952, plaintiff was struck by the leading end of a train consisting of a diesel engine pushing six box cars and a caboose, which was in front. Some eighteen camp or bunk cars had been located on a siding by defendant near New Brighton, Pennsylvania, as living quarters for a number of employees engaged as track workers. The tracks in the area ran generally east and west. The bunk cars were on a siding parallel to another switching track over which the train was being operated when plaintiff was injured.

At the close of the evidence, defendant presented a Motion for a directed verdict, assigning two basic reasons: first, that plaintiff was injured on a mission of his own, which was unrelated to and unconnected with his employment; and, second, that plaintiff having procured his employment by fraud was not entitled to benefits under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. As a third reason, defendant asserted that, as plaintiff sued under the Federal Employers' Liability Act, he cannot recover in this action which was brought solely under that statute.

 Defendant's Motions were not only refused, but the foregoing propositions were taken from the jury, leaving the issue of liability and damages to the jury.

 Defendant now moves for judgment notwithstanding the verdict, claiming that it was entitled to a ruling as a matter of law that plaintiff was not in the course of his employment when injured and that he is not entitled to the benefits of the Act because of fraud in his employment.

 Under the evidence presented, it is my opinion that fair-minded men cannot differ as to whether plaintiff was in the course of his employment at the time of his injury. The Federal Employers' Liability Act requires liberal interpretation to accomplish the purposes intended. The facts as they relate to whether plaintiff was in the scope of his employment are clear and undisputed. Viewing the evidence in the light most favorable to the defendant, it shows: plaintiff and the other track employees were subject to twenty-four hour call to duty. They received their lodging in the cars free of charge, but paid board covering their meals to a concern who had contracted for such services with defendant. The day before the accident, plaintiff had a day off. The evening before he had been in town with other employees on their own affairs. There was no access to the camp car area by public highway or sidewalk, as the camp cars were situated on property of defendant. Plaintiff and other employees walked to and from the bunk car area when on their own affairs, sometimes between the rails of the track on which the switching train was operated or on a path between the two sidings, and at other times on the unimproved roadway which entered the area from the east. Plaintiff had left his companions in town for the stated purpose of returning to his bunk car to retire for the night. He walked towards the line of bunk cars from the 10th Street Bridge. He had passed at least one and perhaps two of the cars when he was struck by the caboose of the train. At least two trainmen were standing on the caboose platform but neither saw plaintiff until the moment he was struck. The train was moving from three to four miles per hour when it struck plaintiff and it came to a stop at the third to fourth car at the west end of the camp car line. Plaintiff was struck when within twenty-five to thirty feet from the bunk car in which he slept. Under the foregoing facts, I held, as a matter of law, that plaintiff was within the scope of his employment when injured.

 Defendant says that it was a question for the jury as to whether plaintiff was in the scope of his employment when he received his injuries; especially does defendant contend that it was for the jury as to whether plaintiff returned from town for the purpose of going to work the next day. In this connection, it should be kept in mind that the fact that plaintiff was struck while within the line of the camp cars, the fact that plaintiff's place of residence was in the bunk car provided by defendant, and the fact that plaintiff was on twenty-four hour duty, all were undisputed. It is true that plaintiff testified that he was returning to go to sleep to ready himself for his next day's work. However, I do not regard the matter of plaintiff's intention as being an issue for the jury. I regard plaintiff as being within the scope of his employment as he was subject to being called for work at any moment. Also, it is not necessary that plaintiff should actually reach the steps of the car in which he lived to hold that he had returned to the place of his abode. It is true that the camp car area cannot be exactly defined, yet plaintiff had arrived back at the accommodations provided by the defendant, when injured. See Mostyn v. Delaware L. & W.R. Co., 2 Cir., 160 F.2d 15; Chicago, M. St. P. & P.R. Co. v. Kane, 9 Cir., 33 F.2d 866.

 On the second point in defendant's motion, that is on the question as to whether there was fraud in plaintiff's employment, defendant calls the Court's attention to the Supreme Court decision in Minneapolis, St. P. & S.S. M.R. Co. v. Rick, 279 U.S. 410, 49 S. Ct. 363, 73 L. Ed. 766. That case, of course, sets forth controlling principles of law. Plaintiff here had an artificial right eye. The question is whether plaintiff obtained his employment and held it through fraudulent means. What were the conditions under which plaintiff in this case entered the employ of the defendant? The evidence on this point is clear and uncontradicted. A group of men, including plaintiff, were rounded up by an employment agency in Detroit. There some form of an application for employment was filled in. The men were then given a physical examination by defendant's physician. It is not clear whether the same day or the next day plaintiff signed a more detailed employment application in which answers to various questions were set down by someone, but this document was, in fact, signed by plaintiff. There is no evidence whatsoever that the application in which plaintiff's physical condition was not accurately set forth had anything whatsoever to do with the inception of plaintiff's employment or his continuance therein. The examining doctor certified plaintiff's vision as 20-30 in both eyes. He certified that plaintiff passed a reading test for both eyes without glasses and also that plaintiff was approved for sight, color senses and hearing, and for employment. The report was signed by Dr. I. R. Browning, who died April 29, 1951. The examination was had on April 11, 1950. Prior to the accident, plaintiff was in defendant's employ for a matter of over two years. When plaintiff was on the witness stand, a mere glance revealed to me that there was some defect in plaintiff's right eye. An examination by a physician should certainly have revealed the artificial eye. Certainly under the circumstances shown, the facts are far from those shown in the Rock case. The mere fact that the plaintiff had an artificial eye does not show fraud in securing employment. When a physical defect such as plaintiff possessed is visually apparent and when plaintiff was permitted to continue in his employment for over two years in daily association with other employees and supervisory personnel, the mere fact of an incorrect statement in the application should not deprive plaintiff of a ruling that his employment was not retained or colored with fraud. There is no showing whatsoever in the present case that the examining physician was in any way deceived or that plaintiff in any way attempted to deceive the examining doctor. The evidence was that defendant immediately rushed plaintiff and other applicants for employment to a physician for a physical examination. Defendant's own physician approved plaintiff's physical condition for employment. As has been stated, plaintiff's physical defect was apparent to a casual observer. Any carelessness in hiring a one-eyed man as shown by the evidence in this case, must be contributed to the defendant's physician. Defendant's counsel says that the Court erred in the quantum of proof necessary to prove fraud. Defendant's counsel also says that it need only be proved by a preponderance of the evidence rather than by clear and convincing proof. Regardless of the quantum, however, I stated on the record at the time the Motion was made on this phase of the case that there was merely a scintilla of proof on the question of fraud and in view of the evidence on this point, I feel that the Court's position at the trial was correct and it is, therefore, still my opinion that there was insufficient evidence of fraud to go to the jury on this question.

 My ruling on the two basic propositions discussed, which are the bases for the Motions for judgment for the defendant, notwithstanding the verdict, is in line with the principles mentioned in Lovas v. General Motors, 6 Cir., 212 F.2d 805, at page 807, where the Court says:

 'Certain principles are well settled under both state and federal law. In every case, before the evidence is left to the jury, there is a preliminary question for the judge whether there is any substantial evidence upon which a jury can properly proceed to find a verdict for the plaintiff, upon whom the burden of proof is imposed. A mere scintilla of evidence, or evidence of no probative value, is not enough to require the submission of an issue to the jury.'

 The ruling of the Court on these two points will not be disturbed.

 Defendant's Motion for a new trial contains fourteen numbered paragraphs, assigning various reasons why a new trial should be granted. The reasons assigned fall into six general categories, as follows:

 First. Use of Camp Car Area

 Defendant claims error in permitting plaintiff's witnesses to testify that it was usual for men residing in the camp cars to use the railroad siding and the track where the accident occurred as longitudinal walkways during their off-duty hours. This evidence was relevant on the question of notice, both on the question of defendant's negligence and plaintiff's contributory negligence. The custom and habit of the men walking in and about the camp car area certainly went to the question as to whether defendant had notice that plaintiff and others might be using the railroad sidings as walkways. In this connection, the evidence was that the siding in question was but little used and at irregular times. Defendant had issued no instructions as to pathways which the men were to use. The jury, in consideration of negligence, had a right to know whether Casso was walking at the place where the men residing at the camp cars customarily and habitually walked in going from Beaver Falls to the camp. It is pointed out in connection with this evidence, that the testimony of at least three witnesses as well as the plaintiff, was received without objection on the part of defendant's counsel.

 The eleventh and twelfth reasons assigned in the Motion for a new trial relate to the question as to whether plaintiff was within the scope of his employment ...

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