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RUPNIK v. PENNSYLVANIA RAILROAD COMPANY (11/12/63)

November 12, 1963

RUPNIK
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT.



Appeal, No. 172, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, April T., 1959, No. 1185, in case of John J. Rupnik v. The Pennsylvania Railroad Company. Judgment affirmed.

COUNSEL

William Claney Smith, with him Lisle A. Zehner, and Smith & Zehner, for appellant.

Robert B. Lvory, with him Evans, Lvory & Evans, for appellee.

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

Author: Musmanno

[ 412 Pa. Page 461]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff in this case, John J. Rupnik, employee of the Pennsylvania Railroad Company, sued the Railroad Company under the provisions of the Federal Employers' Liability Act*fn* and recovered a verdict in the sum of $50,000. The defendant has moved for judgment n.o.v. and for a new trial. The facts briefly are as follows.

On May 1, 1957, John Rupnik, working as a riveter on the Superior Avenue Bridge which crosses Pennsylvania Railroad tracks in Pittsburgh, was engaged in installing new plates under the "walk brackets" of the

[ 412 Pa. Page 462]

    bridge. In order to accomplish this operation he had to lie on a scaffold suspended beneath the bridge and hold his 18-inch riveting gun above him, flattening the rivets which were inserted into the appropriate holes. The scaffold from which he worked measured about six feet by six feet and was suspended by 3/8" cables. The space between the floor of the scaffold and the surface on which Rupnik was engaged measured only 18" to 24". This restricted space required him to use his left hand to hold on to the bridge structure, while, with his right hand he extended the riveting gun away from the scaffold and out into the free air so that he could get the proper leverage to trigger the gun. In this spatial and unsupported position he pressed the gun against the rivets, pounding them into submission and permanent heading.

The riveting gun weighed about 10 pounds and operated with a compressed air pressure of 100 pounds. Considering the recoil inherent in such a pneumatic tool, the unyielding quality of the metal against which it pounded, and the force required to hold the gun in place, the plaintiff's riveting arm was subjected to a muscular exertion which severely strained all anatomical ligaments involved.

While performing this operation, Rupnik suddenly felt a pain in his right shoulder with stiffness in his neck and upper back. That evening he was examined by Dr. Glenn Roberts, an osteopath, who diagnosed his condition as "a myofascitis ... from the injury to a nerve root, myofascitis of the musculature ... a nerve damage in the lower cervical, upper dorsal area." Rupnik was also examined and treated by the railroad doctor.

Rupnik went on vacation immediately after the accident and then returned to work other than riveting. At times he was furloughed because of slack employment. ...


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