Before GOODRICH, KALODNER and GANEY, Circuit Judges.
The plaintiff recovered a judgment against the defendant, The Baltimore and Ohio Railroad (B&O), in a suit under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60. The incident which is the basis of the plaintiff's complaint took place in a railroad yard at New Castle, Pennsylvania, where the B&O and The Pittsburgh & Lake Erie Railroad Company (P&LE) have adjoining parallel tracks. Each railroad has its own waiting room in this railroad yard, but only the B&O maintains a ticket office. Tickets for P&LE passengers are sold at the B&O ticket window in the B&O station on the B&O side of these tracks. The plaintiff was a B&O employee whose duties included wheeling a loaded mail truck across the B&O tracks to the tracks of the P&LE, and loading the mail into a P&LE car. On the night in question plaintiff had brought his loaded truck to the door of the P&LE mail and baggage car. He claims that the door of this car stuck and that in endeavoring to force a large bag through the narrow opening of the car he wrenched his back and suffered the injuries complained of. Since the jury found in his favor his version of what happened must be taken to be accurate.
The court below was not completely happy with the verdict. See 196 F.Supp. 108 (W.D.Pa.1961). He said that he agreed "with the defendant that it is difficult to understand how the jury could find that the narrow opening caused by the defective door created an unreasonable risk of harm on which to predicate liability * * *." Nevertheless, being familiar with the decisions in this field, he did not interfere with the jury's verdict.
Our difficulty comes from one point which the court passed over rather lightly. He said:
"The employer's duty to inspect and to repair a defective appliance creating an unreasonably unsafe condition cannot be delegated. In the case at bar, it was for the P. & L.E. to discharge that duty, and its negligence in failing to do so was the negligence of the plaintiff's employer, B. & O., as a matter of law."
Our trouble comes in seeing how the negligence of the P&LE, if any, in having a defective door, became attributable to the B&O as a matter of law. As the judge himself pointed out in addressing counsel during the trial of the case: "We have no contract in evidence. All we know is that the B&O Railroad was serving the P&LE trains by their baggage man." The car alleged to be defective belonged to P&LE. Nothing appears to show us that the B&O had any control whatever over the car or any employees of the P&LE. We do not know that the B&O became the agent of the P&LE, nor, indeed, as the trial court pointed out, anything more than that a B&O employee hauled the truck over to the P&LE tracks and put the bags in the car.
If the P&LE was the employer of the B&O in this kind of a transaction we do not see any basis for attributing the negligence of the employer to the employee who had no notice of the defect and who had no control over what its "principal" did. As is stated in comment b to section 350 of the Second Restatement of Agency:
"The knowledge of another agent or of the principal does not affect the liability of the agent. Thus, an agent who has no reason to know that the instrumentalities which he uses are not suitable for the work * * * is not liable for harm caused by reason of that fact."
The Supreme Court decision in Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958), is relied upon by the plaintiff. We think whatever impact that case has upon our situation tends to establish liability on the part of the P&LE and not the B&O.
The P&LE was initially joined in this suit. The judge dismissed the action against it on two grounds: (1) that no diversity of citizenship was shown; and (2) that there was no employee-employer relationship between the plaintiff, Shenker, and the P&LE.
To conclude: There was not the slightest evidence of any actual want of care to its employees on the part of the B&O; and, second, we see no basis whatever for attributing any negligence on the part of the P&LE to the plaintiff's employer.
The judgment of the district court will be reversed.
e judgment of the District Court entered in favor of the plaintiff pursuant to the ...