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decided: April 22, 1975.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1971, No. 2753, in case of Patsy E. Ciarolla v. Union Railroad Company, a corporation.


Paul E. Moses, with him Evans, Ivory & Evans, for appellant.

Gerald C. Paris, with him Robert L. Potter, and Reed, Smith, Shaw & McClay, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Price, J. Van der Voort, J., joins in this concurring and dissenting opinion.

Author: Cercone

[ 235 Pa. Super. Page 138]

This appeal arises from the lower court's granting of the defendant-railroad's motion for a compulsory non-suit in an action for damages brought under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 (1971)

[ 235 Pa. Super. Page 139]

(FELA). The plaintiff's claim for relief rested upon two wholly separate accidents which occurred while plaintiff was an employee of the railroad working in their "bridge and buildings department" as a repairman. The two incidents will be separately described below.

The Peters Creek Bridge Accident

In July of 1969 Patsy Ciarolla, the plaintiff, and a crew of men were assigned to replace the steel in the Peters Creek Bridge over the Union Railroad line in Clairton, Pennsylvania. Large steel beams weighing approximately 1700 pounds were to be lifted into place by means of a device called a grip hoist. Two grip hoists would be used to lift each beam with one man operating a hoist at either end of the beam. The handle of the device, which moved through a vertical arc of thirty inches, would be pushed down and pulled up by the operator. Both the downward and upward motions would move the beam two or three inches, and the operators were required to fairly synchronize their efforts lest the beam tilt too radically toward the slower worker. When that happened, the slower worker would be forced to expend a greater effort. The work was admittedly hard, and the men requested that an air winch be used instead -- not because they feared injury, however, but because the winch would make their task far easier.

Operating the grip hoist was the job that Mr. Ciarolla had been assigned to do when he injured his back. According to his testimony, in his nineteen years on the railroad he had never operated a grip hoist before the Peters Creek assignment, and on the day in question he was unable to lift his end as quickly as was his partner. While jacking the hoist he began to feel "bad" and suffered back pain. Although he did not then complain to the foreman, his back injury required his hospitalization the next day.

[ 235 Pa. Super. Page 140]

    a compulsory non-suit would be obvious, for the law is clear that only in the most frivolous cases may the courts deny an FELA plaintiff his qualified right to a jury trial. As the United States Supreme Court stated in the landmark case of Rogers v. Missouri Pacific Railroad Co. :*fn1

"The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.

"The decisions of this Court . . . teach that the Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." 352 U.S. at 508, 510.

In the instant case, a jury could reasonably determine that the work the railroad required of Mr. Ciarolla involved an unreasonable risk of harm. In the Peters Creek accident reasonable minds could differ on whether requiring Mr. Ciarolla to use a grip hoist, to lift 1700 pound beams for the first time was negligent.*fn2 Or, the jury might have determined that Mr. Ciarolla's fellow employee was negligent in raising his end faster than Ciarolla's, thereby shifting the weight of the girders to Ciarolla.

[ 235 Pa. Super. Page 142]

The likelihood of the jury's finding the railroad negligent with regard to the High Grade Bridge accident is even greater. One could reasonably determine that carrying a five hundred pound beam over such treacherous footing, as the load shifted with every uncoordinated stride of the three men, involved an unreasonable risk of harm, especially since the railroad's unloading procedure had previously avoided such a necessity.*fn3


Thus, the remaining question is whether the potentially "negligent conduct" of the railroad caused the back injuries to Mr. Ciarolla.*fn4 In this regard additional facts become relevant. Since 1965, at least, Mr. Ciarolla suffered with a chronic back problem, an ailment which he had never mentioned to the railroad. Indeed, from 1965 to 1969 his back frequently bothered him so severely that he had to visit his chiropractor for relief.

Having discovered Mr. Ciarolla's history of back ailments only after these proceedings were instituted, the railroad successfully contended below that the work required of Mr. Ciarolla was not dangerous, and that his injury occurred only because of his weak back. Furthermore, the railroad argued, Mr. Ciarolla was negligent in not advising the railroad of his ailment and requesting lighter duties. Thus, Mr. Ciarolla's history of back trouble lent weight to the railroad's argument that their conduct was not negligent, and raised the possibility that Mr. Ciarolla's own negligence was the sole cause of his injury.

[ 235 Pa. Super. Page 143]

While the contributory negligence of Mr. Ciarolla, if any, may be considered on the question of damages as a partial defense, it is improper to consider it in evaluating the propriety of the railroad's conduct. In Buffo v. Baltimore & Ohio R.R. Co., 364 Pa. 437 (1950), our Supreme Court was asked to reverse a jury verdict for plaintiff and find that plaintiff's negligence was the proximate cause of his accident. In refusing to do so the Court pertinently stated:

"Defendant's negligence cannot be determined by examining plaintiff's conduct. To do so would be to apply contributory negligence as a defense under the guise of 'non negligence' of the defendant, which the Act prohibits." 364 Pa. at 442.

Thus, Mr. Ciarolla's alleged negligence may only be considered on the question of causation, and even then great deference must be given to an FELA plaintiff's right to a jury trial. As the Supreme Court stated in the Rogers Case, supra, the test of a case for the jury under the FELA "is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." 352 U.S. at 506. (Emphasis added.)

Assuming arguendo that the railroad required Mr. Ciarolla to attempt work which involved an unreasonable risk of harm, query whether one could say, with reason, that the work caused the injury to Mr. Ciarolla's back. The railroad suggests that we infer that even if the heavy work the railroad demanded of Mr. Ciarolla had not involved an unreasonable risk of injury, his back would have been injured because, given his chronic back problem, he was unable to do any weightlifting safely. The suggestion, however, is misleading, at least in an FELA case.

In Coray v. Southern Pacific Railroad Co., 335 U.S. 520 (1949), the United States Supreme Court considered,

[ 235 Pa. Super. Page 144]

    and rejected, a similar argument by the railroad. Therein, the decedent had been a railroad employee who had been assigned the task of breaking-in a new man. The decedent and the new man boarded what apparently was an independently-powered, railroad "motor car" and began to follow several hundred feet behind a train -- the decedent pointing out various points and occurrences of interest to his understudy. While he intently explained a signal that they had just passed to the new man, he failed to notice that the train had stopped in front of him because of faulty air brakes. The distance separating the motor car and the train would have provided more than ample time for the decedent to safely stop the motor car, but his inattentiveness deprived him of that safety margin. The resulting collision caused his death. The Utah Supreme Court found that the stopped train was merely a condition upon which the decedent's supervening negligence had operated. Therefore, the Utah court concluded that it was not the train's stopping, but decedent's negligence, which caused his death. The Utah court held that the reason the train had stopped -- that is, its defective brakes -- was ...

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