Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
The defendant railroad having suffered judgment against it below on a jury's verdict, and its motions for judgment or a new trial having been denied, has brought this appeal, raising mainly the issue as to whether there was any evidence in the record upon which the jury could have found negligence on its part which contributed to the death of its employee.
Lewis Samuel Thomas, an employee of the Conemaugh & Black Lick Railroad Company, was killed on July 9, 1954. His widow, as administratrix, sued the railroad company under the Federal Employers' Liability Act*fn1 for the damages resulting from his death.
At the time of his death decedent was 47 years old. In addition to his widow he was survived by seven children ranging in age from two to sixteen years. The jury, after finding the decedent was guilty of contributory negligence rendered a verdict for $80,000 against the defendant railroad.*fn2
The facts are set forth in detail in the District Court's opinion, D.C.W.D.Pa.1955, 133 F.Supp. 633. They may be summarized as follows:
The decedent was employed as a skip hoist operator or "tipple man". On July 9, 1954, about two hours after he reported for duty, the decedent was found dead at the bottom of a pit, which was part of the hoisting equipment and structure, under a steel bucket weighing 1950 pounds. He had a deep laceration of the forehead which exposed the skull bone; severe abrasions of the upper chest; his hair was matted with blood and his shirt was open and rolled up his chest. When found the decedent was lying partly in water which had accumulated in the pit; a shovel was also found in the pit at the same time. Decedent's duties required him, from time to time, to descend into the pit to remove debris and lubricate a sliding door mechanism in the pit. Iron guard rails surround the opening of the pit. To get into the pit, steel rungs are provided and they are embedded in concrete. There are six on the vertical wall spaced twelve inches apart and ten on the slopping wall spaced eighteen inches apart. The fourth, ninth, and tenth rungs on the sloping wall were completely missing (rusted off) and the fifth was broken and bent flat against the concrete. A rope was attached to a rung at the bottom of the vertical wall for use to descend into the pit. There was no permanent electric light in the pit; there was no electric switch in the pit by which to control the hoist; there was no space or recess in the pit sufficient for a man to stand if the bucket were also in the pit at the end of its travel.
The decedent's primary duty as a tipple man was to unload sand from railroad hopper cars to a storage bin by operating a skip hoist, also known as a "tipple conveyor", by means of its electric control switches. The essential element in the skip hoist operation is a bucket which runs on vertical tracks or guide rails from a pit beneath the hopper car where it is filled with sand to the top of the adjacent storage building where it empties itself. It is suspended by a cable which is controlled and powered electrically.The electric motor and related equipment, including the cable drum and control switches, are located in the ground level of the storage building beside the pit, in a room known as the "hoist house".
The bucket can be operated automatically by pushing the "on" button and the "hoist" or "lower" button located inside the hoist house. When these buttons are depressed the bucket will operate cycle after cycle (from pit to top and back) continuously until stopped by pushing another button called the "safe" button. When depressed the "safe" button stops the bucket wherever it may be. Inside the hoist house there is a cable control switch called a slack switch which shuts off the motor if for any reason the bucket hits an obstruction.
There is also an auxiliary push button switch on the outside wall of the hoist house near the pit opening which is spring operated. If the controls inside the hoist house are "on" and the outside push button is in the "out" position, the bucket will make cycle after cycle from the pit to the top of the storage building and back again. When the auxiliary push button is pushed in and held in a depressed position the bucket will continue i n its cycle until it reaches the bottom of the pit where it will stop and remain until the button is released. The outside push button can be held in the depressed position by turning it clockwise.
At the trial the plaintiff advanced three separate contentions:
(1) The outside auxiliary push button was defective and vibrations from surrounding blast furnaces and movements of railroad engines caused it to pop out from its depressed position thereby putting the bucket in operation and caused it to come down upon the decedent; (2) the failure of the defendant to provide and maintain a reasonably safe place for decedent to work in that there was no light in the pit; some of the rungs were missing and another was defective; there was no control switch in the pit by which a workman could control the movement of the bucket in the event it was started by some intervening agency; there was no clearance for the protection of the workmen in the pit; (3) someone had started the bucket in motion by operating the controls inside the hoist house while decedent was cleaning the pit.
Expert testimony was adduced by the plaintiff to the effect that the outside auxiliary push button was "unsafe"; that it lacked a device necessary to hold it in the depressed position; that the plate which housed the button was not properly aligned and the thread of the button hole was stripped. Plaintiff's witnesses further testified that "heavy vibration" prevailed in the vicinity of the hoist house by reason of the operation of blast furnaces and movements of railroad engines and cars. There was also ample testimony, undisputed by the defendant, as to conditions prevailing in the pit itself.
The sum of the defendant's position at the trial was that incontrovertible physical facts negatived the contentions advanced by the plaintiff; that plaintiff had failed to adduce sufficient evidence to sustain any of its contentions; that if there was any negligence on defendant's part with respect ...