Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1972, No. 2883, in case of Donald M. Ledford v. Pittsburgh & Lake Erie Railroad Company, a corporation.
Paul L. Hammer, for appellant.
G. Edward Yurcon, with him Joseph T. Kosek, Jr., for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Jacobs, J., concurs in the result. Spaeth, J., did not participate in the consideration or decision of this case.
[ 236 Pa. Super. Page 68]
The instant appeal by Mr. Donald Ledford, the plaintiff below, arises from a jury verdict for the defendant railroad under plaintiff's complaint in trespass which alleged personal injuries suffered as a result of the railroad's non-compliance with the Federal Employers' Liability Act (FELA)*fn1 and the Boiler Inspection Act.*fn2 Before treating plaintiff's allegations of error, we will briefly summarize the facts of this case.
On August 15, 1971, in the course of his employment with the Pittsburgh and Lake Erie Railroad (P & LE), plaintiff was riding on a gondola car of a train which included nine cars, a caboose and a locomotive. Not far from its destination in Beaver County, the train stopped unexpectedly. In such situations it was apparently plaintiff's duty to assist in solution of the problem which caused the locomotive to stop. In response to this duty he started to dismount the gondola car in the ordinary manner by reaching out for the grab bar and stepping on a stirrup which was attached to the side of the car. As he began to put his second foot on the stirrup he lost his grip on the grab bar and stirrup and fell to the tracks below. As a result of this fall plaintiff allegedly sustained injuries to his foot and the lumbar region of his back.
At trial the evidence produced on both direct and cross-examination indicated that the train stopped because of the operation of the ground relays. The ground relays in diesel-electric locomotives are safety devices which function in a manner similar to circuit breakers and, according to the testimony of the engineer on that train, do not activate unless the locomotive malfunctions. In such cases, which apparently occur frequently, the relays are usually reset and the train continues on its journey. Such stoppages are common enough that they are not a
[ 236 Pa. Super. Page 69]
cause for concern unless they occur with uncommon frequency to the same locomotive.
Plaintiff contended that but for the malfunctioning of the locomotive which caused the ground relays to operate and the train to stop, he would not have attempted to dismount the train. And, if he had not attempted to dismount the train, he would not have been injured. Of course, under an ordinary negligence theory such a cause of action would barely get beyond the pleadings. First, the operation of the ground relays, being as common as it is, in and of itself does not persuade that the railroad negligently failed to properly maintain the locomotive. Furthermore, the train's stopping did not significantly increase the risk of harm to plaintiff, since mounting and dismounting the cars of the train is a routine task in the ordinary course of his employment with the railroad. Hence, the train's stopping would usually only be treated as a "circumstance" upon which plaintiff acted, and the railroad would not be liable. But, the FELA and the Boiler Inspection Act in many cases place liability where it would otherwise not attach and, in the opinion of the trial court, plaintiff marshalled sufficient evidence thereunder to reach the jury. Therefore, the threshold question is whether the verdict in favor of the railroad was manifestly contrary to the weight of the evidence so that the trial court abused its discretion in denying plaintiff's motion for a new trial.
In pertinent part the Boiler Inspection Act provides:
" It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the ...