Appeals, Nos. 95 and 130, March T., 1954, from orders of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 3486, in case of Thomas E. Finnegan v. Monongahela Connecting Railroad Company. Orders reversed; reargument refused November 5, 1954. Trespass for personal injuries under Federal Employers' Liability Act. Before MONTGOMERY, J. Verdict for plaintiff in the sum of $9,000.; defendant's motion for judgment n.o.v. denied but motion for new trial granted, before SOFFEL, DUFF and MONTGOMERY, JJ., opinion by MONTGOMERY, J. Plaintiff, and defendant, respectively, appealed.
James P. McArdle, with him P. J. McArdle, for plaintiff.
Emmet D. Hurley, Jr., with him T. W. Pomeroy, Jr. and Kirkpatrick, Pomcroy, Lockhart & Johnson, for defendant.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This action to recover damages for personal injuries under the Federal Employers' Liability Act, Act of April 22, 1908, c. 149, 35 Stat. 65, as amended, 45 U.S.C.A. § 51, was instituted and tried in the Court of Common Pleas of Allegheny County. There are two appeals. No. 95 is the appeal of the Monongahela Connecting Railroad Company, defendant in the action, from the order of the court en banc refusing to enter
judgment non obstante veredicto. No. 130 is the appeal of Thomas E. Finnegan, plaintiff in the action, from the order of the court en banc awarding a new trial.
On April 30, 1949, plaintiff was a conductor in the employ of defendant assigned to a train crew engaged in shifting cars in the vicinity of the plant of the Jones & Laughlin Steel Corporation, in the City of Pittsburgh. The crew had been instructed by the yardmaster to pull certain cars from a track located inside the doors of one of the Jones & Laughlin mills. This portion of the track together with all of the immediate area was owned by Jones & Laughlin, although the entire spur track was constructed by defendant. The track inside the mill runs along a loading dock or shipping platform on which Jones & Laughlin employes pile steel for loading into the railroad cars. On the other side of the track is a blank wall which prevents passage on that side while cars are standing on the track. A yellow line had been painted on the floor of the shipping platform about three feet from the edge to indicate to Jones & Laughlin employes what space was to be left clear for the use of railroad employes.
Upon receiving the instructions from the yard-master, plaintiff, who by virtue of his position as conductor was in charge of the chifting crew, took his train up to the closed door of the mill. He then entered the mill by another door and proceeded to the shipping office where he received from Jones & Laughlin employes the bills of lading for the outgoing cars. The overhead door was then opened by employes of Jones & Laughlin to admit the shifting engine. Plaintiff uncoupled the last car to be pulled out from those cars which were to remain in the mill, and one of the brakemen coupled to the engine the car nearest the overhead door of the mill. Plaintiff then gave the
starting signal which was relayed by the brakeman to the engineer, who started the engine in motion to pull the cars out of the mill. Plaintiff walked down the loading platform toward the overhead door, keeping abreast of the cars which were being pulled out at a rate of speed of about two miles an hour. As he proceeded toward the door he observed a pile of steel three to four feet high protruding beyond the yellow line to about three inches from the edge of the platform, thus obstructing his way. Plaintiff then gave a signal to stop the train. After the train had stopped plaintiff attempted to pass between the steel and the railroad car, a space of about 15 inches. The leg of his overalls caught on the edge of the steel and he fell from the platform to the tract, a distance of about three and one-half feet, sustaining the injuries for which recovery is sought.
It is clear from the undisputed testimony that the steel was placed near the edge of the platform by Jones & Laughlin employes; that loaded cars were removed from the mill siding on an average of three times a day; and that the conductor of a shifting crew is responsible for the safety, prompt movement and proper care of his train, and for the conduct of the members of the crew.
After a trial lasting four days the jury returned a verdict for plaintiff in the amount of $9,000. Defendant filed a motion for judgment n.o.v., which was refused, and a motion for a new trial, which was granted because of the excessiveness of the verdict. As above stated, defendant appeals from the order of the court below refusing to grant judgment n.o.v., and plaintiff appeals from the order granting a new trial. We will first consider defendant's appeal.
The opinion of the court en banc held that the presence of the steel at the edge of the platform at the time
of plaintiff's injury did not constitute negligence on the part of the defendant railroad company in the absence of actual or constructive notice to it that a dangerous condition existed, and that the evidence failed to disclose any such notice other than through plaintiff himself. The opinion then continued: "However, plaintiff's counsel contends that our attention should not be limited solely to the pile of steel which caused the accident but should include other factors as well, viz.; the blank wall on the other side of the track affording no walking area for crewmen, the limited width of the actual tract area, and the congested or as plaintiff expressed it: 'the littered condition' of the platform area with piles of steel sheets occupying the regularly established aisles set apart for use in moving the steel into position for shipment ... It was solely on account of these additional conditions that the case was submitted to the jury; for the express purpose of determining from them whether the defendant had any constructive notice of existing hazards at the place plaintiff was assigned to work. The issue therefore, was narrowed to the inquiry by the jury whether such congestion behind the cleared area along the edge of the platform was such as to warn defendant that there might be encroachments or impediments within that area as to interfere with plaintiff's performance of the duties assigned to him.". The court then held that because of the decisions of the United States Supreme Court in Lavender, Administrator v. Kurn et al., Trustees et al., 327 U.S. 645; Bailey, Administratrix v. Central Vermont Railway, Inc., 319 U.S. 350; Urie v. Thompson, Trustee, 337 U.S. 163, and Stone v. New York, Chicago & St. Louis Railroad Co., 344 U.S. 407, it was bound to submit the issue of defendant's negligence to the jury.
In support of the position taken by the court below in this respect, plaintiff argues that because of these cases and a few others containing similar language, "... just about every case of injury to a railroader must be submitted to the tribunal of fact.".
Under the provisions of the Federal Employers' Liability Act, contributory negligence is no bar to a recovery; rather it has the effect of diminution of the damages in proportion to the relative amounts of negligence and contributory negligence which caused the injury. However, the Act does require that plaintiff's injury be caused at least in part by the negligence of the defendant. In the absence of negligence of the defendant as a casual factor in plaintiff's injury, there can be no recovery. Where plaintiff's evidence of negligence and causation amounts to nothing more than a scintilla, the court must enter judgment for the defendant as a matter of law: Brady, Administratrix v. Southern Railway Co., 320 U.S. 476. The cases of the Supreme Court of the United States cited in the opinion of the court en banc and relied upon by plaintiff do not hold otherwise. It is true that in some of those cases there is language used in dictum which would tend to diminish the power of a court to exercise its usual judicial control of a verdict where plaintiff's evidence falls below the minimum standard accepted as a basis for the establishment of liability. For example in Lavender v. Kurn, supra, the authority principally relied upon by plaintiff, the opinion stated at p. 653: "It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference
Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.". Although this statement seemingly enlarged the function of the jury under the facts of the case, it does not have the effect ascribed to it by plaintiff. It requires that the evidence be such "that fair-minded men may draw different inferences", and that there be an "evidentiary basis" to support the jury's verdict. The "speculation" portion of the above quotation was clarified by the Supreme Court of the United States in Moore, Administratrix v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 578, where the court stated: "... Speculation cannot supply the place of proof.". In actions under the Federal Employers' Liability Act the Federal courts have consistently required that plaintiff furnish evidence of negligence and causation of a standard that a jury could reasonably find liability in order to sustain a verdict: Brady v. Southern Railway Co., supra; Moore v. Chesapeake & Ohio Railway Co., supra; Eckenrode, Administratrix v. Pennsylvania Railroad Co., 71 F.Supp. 764, aff'd 164 F.2d 996, aff'd 335 U.S. 329; Gill v. Pennsylvania Railroad Co., 201 F.2d 718, cert. denied 346 U.S. 816; Atlantic Coast Line R. Co. v. Coleman, 182 F.2d 712; Trust Company of Chicago, Administrator v. Erie Railroad Co., 165 F.2d 806, cert. denied 334 U.S. 845.
Our inquiry is therefore directed to the question whether the evidence produced by the plaintiff in the instant case is such that a jury could reasonably find
that defendant was negligent and that such negligence caused plaintiff's injury. Plaintiff's theory of negligence was that defendant did not furnish plaintiff with a reasonably safe place in which to work. It is contended that defendant was negligent in failing to provide clearance to permit plaintiff to pass on either side of the track because of the blank wall on one side and the obstruction on the platform on the other side. It is clear that no finding of negligence may be predicated upon the construction of the track itself. A railroad company has no duty of furnishing clear space for passage on both sides of standing cars. Although we have assumed in our statement of facts that there was insufficient space between a standing car and the blank wall to permit passage,*fn1 there was ordinarily a space for free and unobstructed passage on the platform side. This is all that is required so far as construction is concerned. The rule that neigher courts nor juries may determine engineering questions of this nature has been firmly established for many years: Toledo, St. Louis & Western Railroad Company v. Allen, 276 U.S. 165; Delaware, Lackawanna and Western Railroad Company v. Koske, 279 U.S. 7; Gill v. Pennsylvania Railroad Co., supra.
As was held by the court below, the presence of a pile of steel close to the edge of the shipping platform does not in itself make defendant guilty of negligence. Plaintiff admits that the steel was always handled by Jones & Laughlin employes and there is no possible basis for an inference that any of defendant's employes placed the steel in such a manner as to obstruct plaintiff's passage. In order to render defendant
negligent plaintiff had the burden of producing evidence to show either that defendant knew of the presence of the steel and failed to cause it to be removed or that defendant should have known of the presence of the obstruction. There was no attempt made to show that defendant had actual knowledge of the existence of an obstruction in the passageway. In order to establish that defendant had constructive knowledge, plaintiff had the burden of producing evidence to show either that the steel had obstructed the passageway for an unreasonable period of time or that one of defendant's employes other than plaintiff*fn2 had the duty of inspecting the premises for safety conditions and failed to do so with the result that the steel continued to obstruct the passageway when the accident occurred. No evidence was offered as to how long the steel was present in the passageway. The only possible inference permissible from the evidence is that it was not present when the previous shift was made about eight hours earlier. Plaintiff made some effort to argue that the yardmaster had the duty or at least the custom of inspecting premises for safety conditions before sending a crew to shift cars. However, plaintiff himself testified that he as conductor was in charge of the train and the crew, and plaintiff produced no testimony to the effect that the yardmaster had a custom or duty to so inspect nor any rule of the defendant railroad imposing that duty on the yardmaster. On the contrary, Rule 85 of defendant's operating rules, introduced by defendant, indicates that the conductor
is responsible for the safety of the train and the conduct of the crew. There is nothing in the record to justify an assumption that the yardmaster had a duty to inspect the premises for safety conditions before sending a crew to shift cars, and such assumption to be of any effect would require the further completely unwarranted assumption that if the yardmaster had inspected he would have discovered the obstruction since there is no evidence whatever as to how long the obstruction was present. Under the evidence the steel could have been placed in the passageway only a few minutes before plaintiff was injured.
There is one other matter to be considered with respect to any possible negligence on the part of the defendant under the evidence, and that is the so called "littered condition" of the platform area behind the portion marked off as a passageway. Again there is no evidence that defendant had any notice of the manner in which Jones & Laughlin piled steel in the area behind the passageway, and, what is more important, there is no evidence that any practices followed by Jones & Laughlin employes in the handling and piling of steel in the area behind the passageway (which created no danger to defendant's employes) were such that defendant could reasonably have anticipated that obstructions would be placed in the passageway area. Further, there is no evidence that there had been at any time in the past any encroachment by Jones & Laughlin employes in piling steel into the area set aside as a passageway for the use of railroad employes. There is no basis in the evidence for a finding of negligence on the part of defendant on this theory.
The conclusion is inevitable that on no theory advanced by the plaintiff is there evidential support for a finding that defendant was negligent. Moreover, even if we ...