Appeal, No. 233, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, April T., 1951, No. 829, in case of George R. Churbuck v. Union Railroad Company. Judgment affirmed.
Chauncey E. Pruger, with him Reed, Smith Shaw & McClay, for appellant.
Robert B. Ivory, with him Evans, Ivory & Evans, for appellee.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Plaintiff, George R. Churbuck, brought this action in trespass against Union Railroad Company to recover damages for personal injuries sustained when a pick wielded by an employe of the defendant hit a steel rail and chipped off a sliver of steel which struck plaintiff's eye. Following a jury verdict in favor of plaintiff in the amount of $15,000, defendant filed motions for judgment non obstante veredicto and for a
new trial which were refused by the court en banc. Defendant appeals from the judgment entered on the verdict, assigning as error the refusal of its motions.
Appellant first contends that judgment n.o.v. should have been entered because there was insufficient proof of negligence for submission to the jury. Considering the evidence in the light most favorable to the plaintiff, it appears that following a heavy snow storm in November of 1950, appellant railroad company contracted with the Universal Maintenance & Painting Company to remove the snow from its railroad yard. Plaintiff, with eight or ten other employes of the Universal Company, was working under the direction of appellant's foreman, Theodore V. Kelley. At about 10 or 10:30 P.M. on November 30, 1950, plaintiff was engaged in removing by the use of a pick, hard packed snow and ice between a running rail and a guard rail at a switch point on one of the tracks in the yard. The guard rail, which is a customary device against derailment, was located parallel to and about three inches from the running rail throughout most of its length, the space widening to about five inches at its ends. One Dudash, also an employe of the Universal Company, was similarly removing the ice with a pick between the guard rail and the running rail on the opposite side of the same track. The plaintiff stated that he was chipping the ice out by working in a stopped-over position and swinging the pick very gently. Dudash testified he was performing the work in a similar manner. Neither plaintiff nor Dudash had ever engaged in this kind of work, their regular occupations being of an entirely different nature.
After the two men had been working about five or ten minutes, Kelley, the appellant's foreman, approached and, after watching the operation, took the plaintiff's pick and handed him a flashlight he was carrying,
saying, according to Dudash, "... I will show you how you should have handled the pick.". Plaintiff, at Kelley's direction, was standing about five feet to the rear and left of Kelley and was playing the flashlight on the spot where Kelley was about to hit. Kelley swung the pick handle back over his shoulder so that it was horizontal with the ground and made a full hard swing with the result that instead of hitting the ice, he hit one of the rails and a chip of the rail flew and struck plaintiff in the right eye. Both plaintiff and Dudash said that the accident happened on this first ...