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November 30, 1960

ERIE AVENUE WAREHOUSE CO., Third-Party Defendant

The opinion of the court was delivered by: DUSEN

I. History of the Case

On January 14, 1958, the original plaintiff, Alma M. Day, Administratrix of the Estate of Edward S. Day, brought suit against The Pennsylvania Railroad Company under the Federal Employers' Liability Act, 45 U.S.C.A. ยง 51 et seq. Her complaint alleged that her husband died as a result of injuries received when he was crushed in a close clearance because of the Railroad's negligence (Exhibit P-2, N.T., 16-17, 514).

 On February 27, 1958, the Railroad joined Erie Avenue Warehouse Co., on whose premises the accident had occurred, as a third-party defendant. The third-party complaint alleged that the Railroad was entitled to indemnity or contribution from Erie under a written sidetrack agreement and under the common law of Pennsylvania *fn1" (N.T. 15; Document No. 6).

 Thereafter, the Railroad carried on settlement negotiations with the original plaintiff's attorney. Although Erie was invited to do so, it declined either to participate in the negotiations or to contribute toward a proposed settlement (N.T. 20, 34; Exhibits P-7 and P-8, N.T. 34, 36, 517). After notice to Erie, the Railroad settled the original plaintiff's claim for $ 75,000 on August 6, 1958 (N.T. 20-21; Exhibit P-4, N.T. 218 515). On the same day, that settlement was approved by the Honorable C. William Kraft, Jr., District Judge (Exhibit P-15, N.T. 522). At the pre-trial conference, Erie's attorney stipulated that 'the amount paid in settlement by defendant * * * to wit, $ 75,000, was fair and reasonable' (N.T. 42).

 After extensive discovery had been undertaken and after Erie's motion to transfer the third-party action from the non-jury trial calendar to the jury trial calendar had been denied by Honorable John W. Lord, Jr., District Judge (Document No. 27), defendant moved to have the third-party action dismissed. Defendant contended that the settlement of the original plaintiff's action had divested the court of jurisdiction over the third-party action since there were no independent Federal jurisdictional grounds (both the Railroad and Erie were Pennsylvania corporations, N.T. 607). On May 1, 1959, the Honorable Herbert F. Goodrich, circuit Judge, specially presiding, dismissed Erie's motion (Document No. 38). *fn2"

 For purposes of brevity, third-party plaintiff will be referred to as plaintiff or Railroad and third-party defendant will be referred to as defendant or Erie.

 In view of the allegation in the defendant's brief (p. 31 of Document No. 73) that 'the testimony of (the witnesses employed by the Railroad) in material parts is completely unworthy of belief', the trial judge states that he rejects this allegation and finds that such witnesses did their best to testify as accurately as possible. Coulter and Clausing were particularly accurate witnesses.

 II. Findings of Fact

 1. Plaintiff is the Pennsylvania Railroad Company, a Pennsylvania corporation.

 2. Defendant is Erie Avenue Warehouse Co., a Pennsylvania corporation, with its principal offices and warehousing facilities on the premises bounded by Front Street, Erie Avenue, Second Street, and the line of the Connecting Railroad Company, which is operated by plaintiff.

 3. On July 28, 1955, the parties entered into a written 'Agreement for Industry Track' (Exhibit P-3), which set forth the terms under which Railroad would serve the sidetrack located on the warehouse premises.

 4. The agreement was in effect on October 20, 1957.

 5. On that date, in the evening, a five-man railroad crew was engaged in switching operations on the warehouse sidetrack.

 6. Prior to entering the warehouse property on the night of October 20, 1957, Conductor Andrews, in charge of the Railroad crew, instructed the crew members that there were both side and overhead close clearances on the warehouse grounds and told them not to ride on the top or on the side of cars while on the property. He and brakeman Coulter were the only two members of the crew who had previously been on Erie's premises. All the crew, including one Edward S. Day, a 33-year old brakeman who had worked in such capacity for the Railroad for six years prior to that date, were present when said instructions were given.

 7. After a 30 to 40 minute operation on 'C' track of Erie's premises, the crew and the shifting engine, which was facing west, went from defendant's grounds to the Railroad's tracks, where two boxcars were coupled to the front of the engine. The engine then pushed the two boxcars west on 'A' lead.

 8. The 'A' lead runs generally in a westerly direction along the Railroad's right-of-way and then curves to the northwest through a gate in the cyclone fence bordering Erie's premises. Thereafter, the curve becomes sharper as the tracks pass between two buildings. At the point where 'A' lead begins to straighten, there is a switch ('D' switch) to another track ('D' lead) which runs to the south from 'A' lead. A short distance farther west along 'A' lead, another track, which was out of service, branches to the north from 'A' lead (see Exhibit A to P-3 and P-10).

 9. The cars were pushed onto Erie's premises after the warehouse gate on 'A' lead was opened by a Globe System guard working for Erie.

 10. As the cars moved west on 'A' lead inside the warehouse premises, Firmean Heidke, who was operating the locomotive, received signals from Brakeman Day. Day, for part of the westward move, rode on the first rung of the ladder on the north side of the lead boxcar. At a place where the clearance seemed close, the fireman stopped the cars, at which time Day climbed the ladder to the top of the car.

 11. The westward move was halted when the westernmost boxcar had passed the 'D' switch and was about 30 feet beyond it. The 'stop' signal was given by Coulter and Day, who were then standing on the ground about 40 feet west of the lead boxcar.

 12. Conductor Andrews joined the two brakemen and explained the move that would have to be made to reverse the order of the boxcars before placing them further west on 'A' lead. *fn3" He then walked westward along 'A' lead to see if the track was clear.

 13. Coulter and Day, or Day alone, then gave the 'back up' signal to Fireman Heidke with electric hand lanterns and the draft started eastward at about one or two miles per hour, the locomotive pulling the boxcars.

 14. At the time the back-up signal was given, the two brakemen were on the ground on the north side of the 'A' lead at the west end of the cars. As the draft moved eastward, they walked toward it along the north side of the lead, Day leading the way and Coulter following him (N.T. 135-6).

 15. The ground along the north side of the track was uneven, a gully or ditch having been made by water running down and washing dirt away. Weeds and debris were present in the ditch, in which the men walked. The ditch varied from three to eight inches in depth (N.T. 77, 78, 80).

 16. On the left or north of the 'A' track, as the two men walked eastward and had passed the unused track north of the 'A' lead, was a concrete retaining wall which was physically attached to a warehouse building.

 17. When the cars cleared the 'D' switch, Brakeman Coulter gave Brakeman Day the 'stop' signal, which he expected Day to relay. Day was then approximately 20 feet east of Coulter and positioned between the center of the westernmost car and the concrete retaining wall. He was giving the 'slow' or 'hold-up' signal (which precedes the 'stop' signal) by holding his lamp steady above his head.

 18. Coulter then crossed the track to the south side on his way to the 'D' switch. Just as he crossed the southern rail and before he had time to operate the switch, he heard a scream and moved immediately to the north side of the track.

 19. The draft was still moving when he heard the scream but had stopped when he reached the north side of the track.

 20. He found Brakeman Day with his head wedged between the wall and the western edge of the door of the westernmost boxcar, his face toward the engine, his body facing the car, and his back to the concrete retaining wall. There was a deep laceration on his right eye, his shirt was torn at the right side, and his lantern was on the top of his head. Brakeman Day was dead when coulter reached him. There were no eyewitnesses to the accident causing his death.

 21. At the place where Day's body was found, the distance between the wall and the boxcar door was only 8 1/2 inches. The side ladder of the boxcar (west of the door) was 31 inches from the retaining wall, showing the rapid narrowing of the space between wall and track (see Exhibit D of Document No. 16 and Exhibit P-10).

 22. At or about the place Day's body was found, the concrete retaining wall measured 74 inches from the ground to its top and was 58 inches above the top of the rail. The top of the wall in the vicinity of the accident was littered with objects such as metal and pipe, which would have made walking thereon that night dangerous.

 23. There were no close clearance warning signs on the north side of the 'A' lead where the accident occurred. One sign, warning of close overhead clearance, was on the ground south of the track and approximately 80 to 120 feet east of the place where Day's body was found. Two other signs, on the building south of the track, were badly weathered and from a distance appeared to read 'No Smoking.' The words 'close clearance' on these two signs were not visible at a distance of more than 10 feet.

 24. When working in an area where there are close clearances, Conductor Andrews testified that railroad crews were Mostly guided by close clearance signs and the like of that' (N.T. 213-4).

 25. On October 20, 1957, at the time of Day's death, the only light on the 'A' lead came from the hand lamps of the crew members, the locomotive, and some illumination which came from lights ...

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