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COURT v. PITTSBURGH AND LAKE ERIE RAILROAD COMPANY (04/16/63)

April 16, 1963

COURT
v.
PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, APPELLANT.



Appeals, Nos. 94 and 95, March T., 1963, from judgments of Court of Common Pleas of Allegheny County, April T., 1959, No. 1245, and Oct. T., 1959, No. 1192, in cases of Anthony Court v. The Pittsburgh and Lake Erie Railroad Company, Pennsylvania Railroad Company, and United States Steel Corporation et al., and Same v. The Baltimore and Ohio Railroad Company. Judgments affirmed.

COUNSEL

Gordon E. Neuenschwander, for appellants.

Marvin D. Power, with him Michael A. Barletta, and Suto, Power, Goldstein & Walsh, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 410 Pa. Page 521]

OPINION BY MR. JUSTICE MUSMANNO

No matter how stereotyped and individualistic a freight car might seem as it clatters by in a long railroad train, it has characteristics all its own and it develops a precise history which is recorded in the books of the various railroads over which it roams. The car involved in the accident in this case was No. 362807, gondola type. Owned by the Pennsylvania Railroad Company, it began on October 31, 1958, a journey (one of the results of which became the subject of litigation) at the United States Steel Company plant in Fairless Hills, from which point it proceeded on Pennsylvania

[ 410 Pa. Page 522]

Railroad tracks to Homestead, where it interchanged to the Pittsburgh & Lake Erie Railroad, rolling over the P. & L.E. right of way to McKees Rocks, and then to Beaver Falls, where it remained for two days. It took to the road again on November 10th and advanced to a point 11 miles from Ellwood City. Here it was switched to the tracks of the Baltimore & Ohio Railroad, and eventually arrived at the destination of the cargo it carried, the plant of the Garrett Company in Ellwood City. The cargo consisted of 101,810 pounds of hot roll steel. On the morning of November 11th, Anthony Court, employee of the Garrett Company, (the plaintiff in this lawsuit), unloaded the steel, employing a crane and slings in the process. On that same afternoon he took up the job of loading the same car with scrap steel. While engaged in this operation, standing within the walls of the gondola, the end gate, which weighed 1500 pounds, fell into the car crushing his left leg. Amputation below the knee followed.

Anthony Court brought an action of trespass against the Pennsylvania Railroad, the United States Steel Corporation, and the Pittsburgh and Lake Erie Railroad. The P. & L.E. joined the George K. Garrett Company as an additional defendant. Later, the plaintiff filed a separate suit against the Baltimore & Ohio Railroad. At the trial, the court entered nonsuits in favor of the Pennsylvania Railroad and the United States Steel Corporation.

The jury returned a verdict in the amount of $75,000 against the P. & L.E., the B. & O., and the Garrett Company. The verdict was molded by the court to provide that the lien, discharge and satisfaction of any judgment entered upon the verdict should conform to the provisions of the Pennsylvania Workmen's Compensation Act. Both railroad companies appealed, seeking judgment n.o.v., or, in the alternative, a new trial.

[ 410 Pa. Page 523]

The appellants contend that the journey of the involved gondola had terminated when the steel it carried was delivered to the Garrett Company and that, therefore, what happened after that delivery was irrelevant to the case, and if this proposition is not accepted, the appellants are entitled to n.o.v. on the basis that the plaintiff failed to make out a case of negligence against either railroad defendant.

The business of a railroad company engaged in the freight business is to supply cars and motive power for those cars. The business of the Garrett Company (so far as this litigation is concerned) was to receive cargo and send out cargo.

Charles J. Smith, railroad agent of the P. & L.E., whose job was to solicit freight, testified that Angelo Court, an employee of the Garrett Company (brother of the plaintiff), called him on the day of the accident and asked him for an empty car, and that he, Smith, directed Court to "use the car that had come in", that is, the fateful gondola 362807. The lower court said on this point: "No report of the condition of the car was made by Garrett Co., to the P. & L.E. The P. & L.E. made no inquiry as to what the condition of the empty car was before it told Garrett Co. to go ahead and load it. The testimony clearly proved that the P. & L.E. knew that it was the practice of Garrett Co. to load and unload freight cars in its plant. The loading of freight cars by Garrett Co. in its plant was certainly, under the evidence, obviously related to the ...


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