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August 14, 1964

Margaret L. COLLINS

The opinion of the court was delivered by: ROSENBERG

A motion was made here for a new trial, and it will be granted.

The plaintiff, Margaret L. Collins brought an action for damages against her employer, the Monongahela Railway Company, a corporation, defendant, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. ยง 51 et sequi.

 The plaintiff was employed as a block operator by the defendant at the Maitsville Yards near Morgantown, West Virginia. As such an employee, she was required to watch out for smoking hot boxes on the passing trains of the defendant company and to report the same. She was also required to intercept messages and to pass them on. Her position of observation was in a tower, but in the performance of her duties she was required to traverse a pathway, steps and porch to go to and from the tower.

 On the morning of January 19, 1960, there had been rain, snow and sleet and the like, which resulted in icy formations over and along the walkway, steps and porch over which the plaintiff was required to proceed in the performance of her duties. On this particular morning no additional employees had been furnished to provide her with a safe walkway to and from the tower, but the defendant did provide her with a shovel and a broom for sweeping the porch, steps and walkway and also with rock salt for spreading over the area.

 On the morning of January 19, 1960, the plaintiff had used the equipment furnished her and the salt in an effort to provide safe walkways and approaches; and at about 7:20 o'clock she was in the process of spreading salt at or near the steps when she suddenly slipped and fell on her back with the result of an injury to her lower back region.

 The agents of the defendant railroad instructed her on January 22nd to see its doctor, William H. Howell, and he began to treat her. He sent her to the hospital and advised her to use not applications and the like. However, he sent her back to work on January 25th, but continued to prescribe and treat her.

 On February 1st, he gave her a corset to support her injured muscles. On March 4th, she returned to the hospital complaining of rectal bleeding, and on March 15th he made a test and advised her to return on March 16th. He then made arrangements for her to go to the hospital on March 21st. She was then operated upon for the correction of a colon perforation which was caused in the previous examination by Dr. Howell in the use of a sigmoidoscope. Thereafter an infection set in and a hernia subsequently developed. Recovery from these conditions was long delayed, resulting in financial loss to the plaintiff in addition to severe pain and suffering.

 A three-part interrogatory was presented to the jury and by the answer to the third part, the jury indicated that Dr. Howell was 'solely the private doctor of the plaintiff'. The verdict, accordingly, was one in favor of the defendant.

 The plaintiff now in her motion for a new trial offers many objections, most of which have no merit. I am, however, concerned with a multiple interrogatory presented to the jury. This was the form of the interrogatory presented to the jury:

 'Was Dr. Howell, while examining the plaintiff in March 1960 (1) an employee, agent or servant of the railroad, or (2) an independent contractor or (3) solely the private doctor of the plaintiff?'

 The question to the jury should have been simply stated in the alternative.

 'Was Dr. Howell the employee or agent of the Defendant? Was Dr. Howell the private doctor of the plaintiff?'

 These simple questions then should have been clothed with apt and appropriate instructions. The interrogatory as submitted was in addition to a general verdict form in which the jury found for the defendant. It now appears to me that there was a lack of clarification in the instructions as given to the jurors.

 While the defendant had offered as one of its defenses the proposition that Dr. Howell was an independent contractor, this was not supported by the evidence as a whole. The burden was upon the plaintiff, in first instance, to prove by a preponderance of the evidence that she received her original injury on January 19th because of the negligence of the defendant, in whole or in part, in failing to give her a safe place in which to perform her duties. Burch v. Reading Co., 240 F.2d 574, C.A. 3, 1957, cert. denied 353 U.S. 965, 77 S. Ct. 1049, 1 L. Ed. 2d 914. The plaintiff showed that extreme weather conditions existed at the time of her fall and the resulting injury to her lower back; that she could not counter these conditions with the shovel, broom and salt as furnished by the defendant; that the weather conditions were such as to make it difficult ...

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