UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 23, 1968.
SALVATORE DANIEL, FORMERLY KNOWN AS SALVATORE PUCCI DANIELE, APPELLANT,
PITTSBURGH & LAKE ERIE RAILROAD COMPANY, A CORPORATION
Hastie, Freedman and Van Dusen, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This case involves a suit under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) against the appellee, Pittsburgh & Lake Erie Railroad Company ("Railroad"), to recover damages for injuries that appellant, Salvatore Daniel ("Daniel") claims were caused by the negligence and carelessness of the appellee. The jury returned a verdict of $15,000 for Daniel and the appellee promptly moved for judgment n.o.v.*fn1 The District Court granted the motion and directed judgment entered against appellant, Daniel. From this ruling, the present appeal is taken.
The rule of law applicable to this case we recently restated in Albergo v. Reading Company, 372 F.2d 83, 85 (3d Cir. 1966):
"Our 'appraisal of the proofs * * * is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all' in the occurrence which resulted in the plaintiff's injury. * * The test * * * 'is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * *.' The evidence may be minimal but it must be sufficient 'to provide the jury with some rational basis for concluding that some negligence of the railroad' proximately contributed to the accident."
See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 507, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957); Dessi v. Pennsylvania Railroad Company, 251 F.2d 149, 150, 78 S. Ct. 1006 (3d Cir. 1958); cf. Zegan v. Central Railroad Company of State of New Jersey, 266 F.2d 101, 102-104, 77 A.L.R.2d 768 (3d Cir. 1959).*fn2
Applying this rule of law to the record in this case, however, is very difficult. The evidence must be examined "in the light most favorable to the prevailing party, resolving all conflicts of testimony in his favor, to determine whether the evidence was sufficient to carry the case to the jury." See Zegan Case, 266 F.2d supra at 102. Also there was a pronounced language problem because all those who testified, appellant Daniel and all four of the Railroad's witnesses alike, spoke extremely poor English. In some instances they apparently could not understand the questions asked.*fn3 The appellant's evidence consisted entirely of his own testimony, and brief portions of depositions of two of the Railroad's employees.*fn4 The Railroad's evidence was similarly confined to testimony in the broken English spoken by the witnesses. Such a record is quite difficult to analyze and perhaps even more than in the usual case, every possible favorable presumption should be given to the jury's determination since they had the opportunity to understand with the aid of accompanying physical gestures and expressions.
After careful consideration, we have concluded that there is sufficient evidence on this record for the jury rationally to have found that an accident occurred to Daniel on August 2, 1962 while he was working on a road crew of the Railroad. Daniel was one of seven men, including the foreman, on the crew which was operating a rail-anchor machine weighing approximately 475 pounds.*fn5 This machine apparently rolled along the rails and after clamping new rails securely in the proper place, fastened them to the ties with rail anchors. On the day the accident happened, it had become necessary to move this machine from track 23 to the parallel track 24. Daniel, his back toward the machine on track 23 and facing track 24, picked up the "heavy side" of the machine. At the same time, behind him and to either side, the other six men also lifted the machine. In terms of an analogy used by the trial judge during the trial, the arrangement was much like pallbearers, except Daniel was in front, walking forward, and the three men on each side faced the machine and moved sideways.
Daniel testified that while lifting the machine out of track 23 and moving toward track 24 -- at least a "six foot" distance existing between the two tracks --, Vittorio Di Santo let his corner (forward, right, behind Daniel) down, causing the machine to press more heavily against Daniel's back.*fn6 DiSanto, however, denied that he ever let go or lightened his share of the weight, and the other three witnesses testified that nothing happened other than moving the machine and that no one tripped or stumbled or let his end down. Even though appellant insists that "DiSanto was caused to stumble or otherwise let his end of the machine down", as to this theory of proximate cause there is no direct evidence that Daniel or anyone else ever saw this happen. Since Daniel faced away from the others,*fn7 he only guessed at the cause of the increased weight of the machine that he felt hurt his back. As the testimony shows by the words "* * * or something. I don't know. Maybe. * * *", "I was work straight with the machine in my back" and "I don't know what happened to him * * *",*fn8 the appellant at best gave his opinion as to the proximate cause of the accident.*fn9 For the jury to attribute negligence to the Railroad's agent, DiSanto, and thus to the Railroad, based on this opinion, is a conclusion as to proximate cause without a rational basis in proof.
The jury was justified, however, in finding that the injury to Daniel's back occurred during the effort of moving the machine from track 23 to track 24.*fn10 Daniel also testified that the area between track 23 and track 24 (the "sixfoot" area) was uneven and not level because the tracks were being raised using this language:
"It no was in good condition because they was raise the tracks. Some place it was high, some place it was low. The gravel just you know a little rough, they raise the track. It was in a bad condition. * * *"
"A. I say happened right there made me to fall, careless in track.
"Q. In the track where?
"A. Yes, in the railroad track the condition not right. It's not level, got track and ties, you know, the place is six-foot between the one track and the other one and the other place we were working, raise the track, * * *"
See also testimony referred to at footnotes 6 and 9 supra, including the testimony that the gravel was "loose." The jury could have found that the terrain over which the machine had to be carried (particularly the "six-foot" area between the tracks) was not level and that the ballast was irregular so that appellant was subjected to an unreasonable risk of harm (See Restatement (Second), Torts § 282, comment g (1965)) by appellee's requiring the operation of manual transfer of the machine from track 23 to track 24 at the particular point.*fn11 The jury could rationally have concluded that such negligence contributed in some small part to appellant's injury. See Zegan Case, supra, 266 F.2d at 102-104; cf. F.A.R. Liquidating Corporation v. Brownell, 140 F. Supp. 535, 539-540 (D.Del.1956).
The appellant's lawyer suggested at the pre-trial conference that, because of the requirement that a machine of 460 pounds and of such size had to be lifted in that type of area and transported by men walking with it over uneven ballast, there was a need to balance the machine while walking in an uneven and thus unsafe place.*fn12 Although there was no evidence of irregularity in the "in-track" ballast, on the other hand there was evidence as to the uneven conditions in the general area. This testimony, repeated several times, was that track 23 had been recently raised up. Consequently the machine had to be carried "down" from track 23 to the "6-foot", then "up" to the next new track in the yard. A logical and reasonable inference from this evidence is that Daniel felt the sudden weight merely because a heavy machine was moved "downhill", as opposed to being moved over level ground. No one would have to slip or stumble or let go in order that Daniel, on the heavy downhill side, would feel extra weight, suddenly and far more than normal. The jury could have found that the injury was caused rather by the peculiar working conditions under which the men were ordered to perform.*fn13
Unfortunately the present record does not contain the charge of the trial judge so that we can examine what was submitted to the jury and whether the charge could justify a finding based on liability for an "unsafe method" in an unsafe area under all the circumstances. But since we do know the pre-trial position of the appellant, it is proper on this record to assume that the charge included the theory of "unsafe method" due to dangerous or peculiar work conditions. The jury's conclusion, therefore, has a rational basis in the evidence for determining that a partial cause of the injury was the appellee's negligence.
The order of the district court granting judgment n.o.v. will be reversed and the case remanded so that the district court may reinstate the judgment for the appellant of January 18, 1967 in accordance with the foregoing opinion.