No. 232 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division at G.D. No. 77-01021
Thomas Hollander, Pittsburgh, for appellant.
Aloysius F. Mahler, Pittsburgh, for appellees.
Spaeth, Wickersham and Lipez, JJ. Wickersham, J., concurs in the result.
[ 291 Pa. Super. Page 433]
This appeal is from an order refusing to remove a compulsory non-suit. The action is under the Federal Employers' Liability Act (FELA), ch. 149, 35 Stat. 65 (1908), as amended, 45 U.S.C. § 51 et seq., to recover damages for injuries appellant claims he suffered in an accident he had while working as a pipefitter for appellee railroad. The lower court held that appellant failed to present evidence on the basis of which the jury could find, first, that appellant's accident caused his injuries, and next, that a release appellant gave the railroad was based on such a mutual mistake that it should be set aside. We have concluded, however, that the jury could have made both of these findings. We shall therefore reverse and remand for new trial.
[ 291 Pa. Super. Page 4341]
Appellant was injured on May 4, 1974, while working as a pipefitter in appellee's engine house at Conway, Pennsylvania. His duties required him to go down some steps into a pit below the tracks. As he was doing so, he slipped and fell, striking his head, back, and wrist. Appellant and two of his co-workers testified that the steps were worn, that there was no hand rail in place, that grease, oil, and water were on the surfaces of the lower levels of the work area, and that these conditions had existed for some time and had been the subject of frequent complaints by the workmen.
Appellant missed about five weeks of work, during which time he received physical therapy for injury to his neck. By the middle of June his symptoms had abated and he was told by the physician who had been treating him that he could return to work, which he did. Shortly after returning to work he executed a release to appellee in exchange for a settlement of $2,250.
It seems undisputed -- or at least so the jury could have found -- that when the settlement was agreed to, both appellant and appellee's claims agent, who also testified at trial, thought that appellant was fully recovered. Appellant had some pain, but he attributed it to a bursitis condition he had had for some time; it did not much hamper his ability to work. However, starting in the latter part of 1974 appellant experienced increasing pain and difficulty in doing his work. In March 1975 he sought medical attention from a general practitioner, Harry Seltzer, M.D. Dr. Seltzer hospitalized appellant and referred him to David Kraus, M.D., an orthopedic surgeon. Appellant was hospitalized for over three months. At least part of this time he was paralyzed in all four extremities. After a period of recuperation at home he was hospitalized again in order to be placed in a halo apparatus. Not until June 1976 was he well enough to return to work.
FELA actions are governed by federal law. Chesapeake & Ohio R. Co. v. Kuhn, 284 ...