Appeal, No. 137, March T., 1954, from order of Court of Common Pleas of Allegheny County, July T., 1951, No. 680, in case of Ralph E. Bishop v. Montour Railroad Company. Order affirmed; reargument refused December 17, 1954. Trespass for personal injuries under Federal Employers' Liability Act. Before SOFFEL, J. Verdict for plaintiff in the sum of $5000.; defendant's motion for judgment n.o.v. denied but motion for new trial granted, before THOMPSON, SOFFEL and MONTGOMERY, JJ., opinion by SOFFEL, J. Defendant appealed.
Harold R. Schmidt, with him Rose, Rose & Houston, for appellant.
Albert D. Brandon, with him Frederick G. Weir and Oliver, Brandon & Shearer, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal by defendant under the Act of April 9, 1925, P.L. 221, sec. 2, 12 PS § 682, from the refusal to enter judgment in its favor following a verdict for the plaintiff in a trespass action brought under the Federal Employers' Liability Act of April 22, 1908: 35 Stat. 65 (1908), as amended, 45 U.S.C.A. sec. 51 (1946) et seq. Defendant contends that plaintiff's contributory negligence was the sole proximate cause of the accident. The learned court below refused defendant's motion for judgment non obstante veredicto, but granted a new trial because of error in the charge, the verdict was against the weight of the evidence, and was excessive. Plaintiff did not appeal from the grant of a new trial.
In Buffo v. Baltimore & Ohio Railroad Company, 364 Pa. 437, 72 A.2d 593, a case arising under the
Federal statute cited, providing: "'Every common carrier by railroad while engaging (in interstate commerce) shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence ... of such carrier. ...' this Court held (p. 438): Under section 56 of the Act, Congress empowered state courts to entertain suits: Second Employers' Liability Cases, 223 U.S. 1. But the interpretation of the Act and its application to the facts of any particular case, in order to ascertain whether the plaintiff has been denied a right granted by Congress, is ruled by the decisions of the United States Supreme Court: Brown v. Western Railway of Alabama, 338 U.S. 294. Rights of recovery authorized by Federal laws may not be defeated either by State law or practice: Davis, Director General of Railroads, Etc. v. Wechsler, 263 U.S. 22, 24; Brown v. Western Railway of Alabama, supra." See Bailey v. Central Vermont Railway, Inc., 319 U.S. 350; Wilkerson v. McCarthy, 336 U.S. 53.
The Federal Act bars assumption of risk as a defense and provides that contributory negligence is not a complete bar to recovery, but may be considered in diminution of damages. A railroad is not an absolute insurer against personal injuries suffered by its employes and there is no liability where the employer is not at fault. Evidence of negligence, however, even though slight, necessitates the submission of the case to a jury: Buffo v. Baltimore & Ohio Railroad Company, supra.
Ralph E. Bishop, the plaintiff, was a conductor on a freight (coal) train operated by the Montour Railroad Company. He was injured when alighting from the defendant's moving train near a switch stand by ...