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July 23, 1956

George W. SNYDER

The opinion of the court was delivered by: REEVES

While plaintiff urges many errors in the trial of the above cause, yet counsel for the defendant stoutly insists that his motion for a directed verdict in favor of the defendant at the close of all of the evidence should have been granted and that all of the alleged errors would thereby become moot. If the latter motion should be acted upon favorably, then it is true that the questions urged by plaintiff may properly be disregarded.

Adverting to the facts: The plaintiff was an employee of the defendant over a period reaching back to 1941. His claim is for an injury sustained about 1 P.M., on September 1, 1953. At that time the plaintiff was engaged, near Rockdale, Lehigh County, Pennsylvania, in removing anchors from rails of track No. Two, over which traffic moves toward the East on defendant's railroad. Plaintiff had been employed specially in removing anchors (a device designed to stabilize the rails) for a period of approximately two years. During that period he had not suffered any injuries growing out of accidents in his operations. About two years prior, however, to the date of his injury, while occupied in tamping ballast stones under the ties of defendant's railroad, a ballast stone, by reason of the force used in tamping or hammering, was thrown against his eyeglasses, but with such slight force that no harm was done. Plaintiff said that, at that time, he asked the foreman to provide goggles for his use as a workman on the railroad.

 On the instant occasion, the plaintiff, with a crew of approximately thirty men, was engaged in lifting the track from three to four inches above its prior level. In doing this, ballast stones had been provided as a base. These were dumped at a point where the track was being raised, and at first covered the ties and the lower part of the rails. After the ties under the rails had been lifted up by jacks, ballast stones were tamped under the ties so as to give the rails firm roadbed.

 In removing anchors, the plaintiff used a sledge hammer to dislodge the anchor from the rail. Such anchor was described as 'Improved Fair Rail Anchor.' It is designated as a one piece anticreeper, and made from high carbon steel rolled to a special T section and drop-forged into shape. The one end in curved to bear on the top of the base, on one side of the rail, and along the entire bottom of the base. Weight of anchor, three pounds. The larger part being on the outside of the rail and the inner part being attached by a short notch over the flange of the rail, to dislodge, it was necessary to strike downward and outward. Some anchors were more easily dislodged than others. In this case, a 12 pound sledge hammer was used to effect a detachment. At the time in question the plaintiff stood, as was the practice and custom, with his left foot on the outside, on the top or curved part of the anchor, so as to prevent it from being thrown, if easily dislodged, any appreciable distance from the place where it was attached. The plaintiff said he struck a blow with the 12 pound sledge hammer and that the force thus exerted drove the anchor from under the rail and his foot and carried it approximately three feet horizontally with the ground. Apparently it struck one of the stones used for ballast in such way and with such force that a stone was thrown upward and struck the right lens of his eyeglasses. The force was great enough to break the lens and to drive pieces of the glass into his right eyeball. He was rendered totally blind in the right eye, and of course suffered great pain and considerable medical expenses and such disabilities as would accrue by reason of the total loss of the sight of one eye.

 The averments of the complaint, in effect, were those of general negligence. At the trial, however, it was the contention of counsel for plaintiff that the defendant owed the duty, not only to use ordinary care to furnish the plaintiff a reasonably safe place in which to work, but also, in the same way, to provide a protective device, such as goggles, to obviate an injury of the kind actually accruing to the plaintiff.

 The only evidence on the question of liability was that of the plaintiff. The verdict of the jury, orally received, was that there was no negligence on the part of the defendant, nor, said the jury foreman, was the plaintiff negligent, but that it was a 'freak accident.'

 During the argument to the jury, counsel for plaintiff repeatedly advised the jury that the plaintiff was not the beneficiary of workmen's compensation, and that he depended wholly upon the verdict of the jury to compensate him for his injuries.

 The court instructed the jury that it was the duty of the defendant to use ordinary care to provide a reasonably safe place for the plaintiff to work, and, moreover, that it was its duty to use such care to provide such protective devices as the facts would warrant.

 During the deliberation of the jury, and while the court was engaged in the trial of another cause, a written inquiry was made through an attendant deputy marshal as to whether the plaintiff was receiving workmen's compensation. Relying upon the repeated statements of counsel for plaintiff that the plaintiff was not receiving workmen's compensation, the court answered the jury's question in the negative. The case on trial was not interrupted to call the jury into the courtroom nor was counsel advised of the message, for the reason that only one answer could have been returned. It was an immaterial and inconsequential inquiry.

 Based upon instructions of the court, and upon this episode, counsel for plaintiff is now urging the necessity for granting a new trial.

 Other facts may be stated in the course of this Memorandum Opinion:

 1. On the defendant's motion for a directed verdict, the jury sensed the identical reasons why the court should have directed a verdict for the defendant at the close of the testimony. It said that the injury to the plaintiff resulted from a 'freak accident.'

 Oftentimes the word 'accident' is used in such a sense as not to exclude the idea of negligence on the part of one whose act or omission caused the injury. But the term 'accident', as contemplated by the jury in this case and as the facts fully justified, is also used to indicate an injurious occurrence which was not only actually unforeseen but which could not reasonably have been foreseen, that is to say, a casualty which could not be prevented by ordinary care and diligence. 65 C.J.S. Negligence, § 21, p. 429.

 So the only question is whether this was a casualty which could have been prevented by the use of ordinary care and diligence. The evidence was that the plaintiff, with others, was engaged in elevating a railroad track of the defendant near Rockdale, Pennsylvania. Plaintiff said that his work in that enterprise was to remove or dislodge the rail anchors. He had been so engaged for a period of two years. During that period he had used identical methods and so far as the testimony showed no prior accidents had been experienced. It was the practice to dump rock ballast over and along the track to be elevated, and then such ballast was tamped under the ties to make a firm roadbed. There was no evidence or even any suggestion that any other method could have been pursued, nor was there evidence that, in ...

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