Ganey, Seitz and Aldisert, Circuit Judges. Seitz, Circuit Judge (concurring). Aldisert, Circuit Judge (dissenting).
This case involves consolidated appeals of two plaintiffs from an order of the district court denying their motions for a new trial in an FELA action in which the jury found that the railroad was negligent but that its negligence played no part in causing the accident.*fn1 The railroad had brought Edward Kozora, an uninsured motorist, into the case as a third-party defendant. Plaintiffs did not amend the two-count complaint to include him as a defendant.*fn2 Their main point for reversal is that the trial judge committed error in his charge to the jury.
The facts giving rise to the accident and the injuries claimed by plaintiffs may be briefly stated as follows: At about 3:30 a.m. on the drizzly morning of January 25, 1964, plaintiff, Nick Idzojtic and John Skocich, were returning to the Conway Yards after they had replaced a derailed gondola car on the tracks at the railroad's Allegheny Yards in Pittsburgh, Pa. They were riding side by side in the front seat of an open-bed stake-body Ford truck being used as a wreck truck and owned by the railroad. It was being operated by another railroad employee, Paul Peter Fishovitz, and was proceeding northwardly at the rate of about 35 miles per hour in the right-hand lane of the Ohio River Boulevard (Route 65), a four-lane concrete paved highway, in the vicinity of Baden, Pa. The area was without overhead lights and the road was straight and level. A car being driven by James J. Gameos had been following the truck in the right-hand lane and moved into the left lane to pass it. While Gameos was still in the left lane, two to three car lengths behind the truck, a car being driven by Kozora, third-party defendant, in the right lane passed him on his right and crashed into the wrecking truck in the right lane. The wrecking truck pulled up on the berm east of the northbound right lane approximately 150 feet beyond the point of impact with its right taillights smashed and the right mud flap missing. The plaintiff, Idzojtic, testified that after the impact the left taillight was burning.
Kozora, called as a witness by plaintiffs, testified that immediately prior to the collision he was traveling 30-35 miles per hour with his low-beam headlights on in the left lane and a car in front of him was spraying water on his windshield and he steered into the right lane to pass that car. He explained that his windshield wipers were not doing such a good job on the "mud" splashing up from the car ahead and was leaving more or less of a smear on his windshield. When he passed that car Kozora "could see very good" in returning to the right lane to permit, as he said, a car behind him to pass. While he was proceeding in the right lane at the speed of 40 to 45 miles per hour, he did not see any car on his left nor anything within the range of his headlights, and then almost immediately he struck the rear of the wrecking truck. He said prior to the collision he never saw the truck or its rear lights.*fn3
Plaintiffs testified that there were two impacts, and they were thrown backward by the first, as a result of the truck being struck in the rear, and then forward by the second which they claimed was caused by the forward shifting of the heavy materials and tools, such as 500 pound airjacks, wooden blocking and wedges, cables, sledge hammers, picks, shovels and crow bars, in the bed of the truck. Idzojtic stated also that after the second impact or jolt the right cab door came open and he held on to the top of the window frame while the truck slowed down but was thrown out of the cab before the truck came to a stop.
Fishovitz, the driver of the car, called as a witness on behalf of the railroad, agreed that there was an initial impact but did not notice another one. He stated that the impact caused the truck to lurch forward suddenly, "seemed like it increased speed all of a sudden for a second."
At the trial plaintiffs maintained that the railroad was negligent in operating a vehicle on the highway which was defective in the following particulars: (1) The right front door was without a window glass which required them to cover the opening with a sheet of cardboard material; (2) Tools and materials were loaded in its bed without being secured; (3) The heater was not functioning; (4) The right rear mud flap was missing, and (5) The rear taillights were not burning or were invisible.*fn4 The railroad did not contradict the fact that it was aware that the door glass window was missing or that some of the tools and materials being carried in the bed of the truck were not secured. It did dispute the other particulars and offered evidence to show that the heater was working and that the right rear taillight was smashed and the right rear mud flap was torn off as a result of the collision.
The trial court submitted six special interrogatories to the jury.*fn5 He charged the jury, regarding the first two, as follows, in part:
"Your answers to these questions will constitute your verdict in this case.
"1. Did the plaintiffs prove by a fair preponderance of the evidence that the defendant Railroad was negligent?
"Now, you answer that question yes or no.
"Only if you answer it yes, answer question 2.
"2. Did the plaintiff prove by a fair preponderance of the evidence that the Railroad's negligence caused the ...