Forman, Seitz and Adams, Circuit Judges.
On December 9, 1963, the late Elmer Ely, accompanying his fellow employee, Benjamin Johnson a signal maintainer, proceeded by truck to Landis Siding, Pennsylvania, where they had been sent by their employer, Reading Company, to check a report that an automatic block signal was not operating properly. Landis Siding runs off Reading Company's three track east-west main line between Palmyra and Hershey, Pennsylvania. After parking the truck on the south side of the main line the two men, both long-time employees of the Railroad, first checked the signal blocks east of the siding and found all in working order.
They then began their inspection at Landis shortly after which a sudden snow storm occurred with high wind which was the worst in many years. Hearing and visibility were drastically reduced. The two men retreated to their truck. Before the storm abated, however, Mr. Ely, the decedent, anxious to complete his assignment in order to catch a bus, left the truck and walked west to check the derail device on the siding track, located north of the main line. As he proceeded west, Mr. Johnson walking north felt vibrations from an on-coming train and he jumped in order to avoid being hit by it. He then turned west searching for Mr. Ely and found the dismembered parts of his body.
The train's engineer was unaware that there were workmen in the area. The train was travelling on the number one track at a rate of 50 miles per hour with two engines, 31 freight cars and a caboose.
No one actually witnessed the incident that took Mr. Ely's life but his foot prints were identified disclosing that he was walking between the rails of the number one track with his back to on-coming traffic. It was unnecessary for the workers to be on the tracks in order to perform their tasks. The signals were operating properly and if they had not been they would have indicated red which would have stopped any on-coming trains.
The above facts were brought out at a jury trial in the United States District Court for the Eastern District of Pennsylvania in a suit instituted by Eleanor Ely as Administratrix of the estate of her husband, Elmer Ely, against the Reading Company under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., to recover damages for his death. The jury rendered a verdict against her and judgment was entered thereon in favor of Reading Company on March 26, 1969. A motion for a new trial was denied on July 7, 1969, and this appeal followed.
Mrs. Ely, the appellant, first contends that the District Judge erred in accepting Point for Charge No. 18 of Reading Company, the appellee. She argues that it improperly limited the issue of liability to whether the engineer ran his train in accordance with the appellee's rules and in the usual fashion, instead of posing the question of whether both the engineer and Mr. Johnson conducted themselves reasonably under the circumstances. The disputed instruction reads:
"It must be remembered that the engineer, Mr. Hoffman, in this case was under orders to run his train according to schedule and he was proceeding under these orders as well as in accordance with the block signals along the right of way. Consequently, if you find there was nothing unusual in the operation of the train by Mr. Hoffman and Mr. Kinsey, [the fireman] that there was no violation of any statutory requirement, or that there was no failure of compliance with any orders or recognized custom or rule adopted for the safety and protection of employees, you may find for the defendant Reading Company."
In examining an alleged erroneous instruction to the jury, it is necessary to view the charge as a whole.*fn1 It must be determined whether the charge "taken as a whole, fairly and adequately submits the issues in the case to the jury."*fn2 When this standard is applied here, it is obvious that the charge as a whole adequately put in issue both the engineer's and Mr. Johnson's actions. In at least three instances, the judge referred to both men.*fn3 As one example, the judge instructed that:
"In this case, of course, the railroad can't act as an individual. This is fundamental in this case. Were the employees of the railroad negligent? The engineer or engineman, was he negligent? Was Mr. Johnson negligent, having in mind that Mr. Ryan himself called Mr. Johnson and told you precisely what happened on that day? Were they negligent or did they act as a prudent person would under these circumstances or did they not? Did they fail to do something they should have done at that time and under those circumstances?"*fn4
In light of the repeated reference to both men, it cannot be said that the one instruction which only mentioned the engineer improperly limited the question of liability. Nor can it be said, as appellant urges, that this instruction misstated her case or eliminated any pertinent evidence from the jury's consideration.
The appellant also contends on this appeal that this same instruction, defendant's Point for Charge No. 18, substantiated by implication the testimony of two of appellee's witnesses that the decedent walked between the rails and was contributorily negligent. It is difficult to understand how the instruction could have had such effect since it made no reference to the course taken by the decedent. This individual instruction simply directed the jury to consider whether the engineer was negligent. No basis is found therein ...