Kooker v. Pittsburgh & Lake Erie Railroad Co.

• Citation: 258 F.2d 876
• Decision Date: 17 September 1958
• Docket Number: No. 13357.,13357.
• Parties: Donald E. KOOKER, Appellant, v. PITTSBURGH & LAKE ERIE RAILROAD COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

258 F.2d 876 (1958)

Donald E. KOOKER, Appellant, v. PITTSBURGH & LAKE ERIE RAILROAD COMPANY, Appellee.

No. 13357.

United States Court of Appeals Sixth Circuit.

September 17, 1958.

Reed S. Battin, Warren, Ohio (Battin & Downey, Warren, Ohio, on the brief), for appellant.

Richard B. Wilson, Youngstown, Ohio (Wilson & Wyatt, Youngstown, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, MILLER, Circuit Judge, and CECIL, District Judge.

SIMONS, Chief Judge.

This appeal is from a judgment upon a directed verdict for the defendant in a suit by Kooker under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. There is no substantial dispute as to the facts and the sole question is whether a reasonable inference requires the submission of the issues to the jury.

The appellant was employed by the railroad as a yard helper in a switching crew consisting of an engineer, conductor, fireman and brakeman. The work of the crew was to be conducted at the interchange yard some 2½ to 4 miles east of the Terminal Building where the crew reported for work on Monday, March 9, 1953. It was the practice on that day of the week for the crew to meet at the Terminal Building and ride to the interchange yard on an engine which was to be left there for the next crew. It was also the practice for one of the crew to drive his own automobile to the interchange yard so that the earlier crew would have transportation back to the Terminal Building area, the crew members alternating in driving their cars.

It being Kooker's turn, he drove his car to a vacant lot north of the interchange yard and parked it. In order to get from this lot to the tracks of the appellee railroad, it was necessary to cross two main tracks and a side track of the Baltimore & Ohio Railroad which parallel the appellee's tracks but on a grade some 20' to 30' higher. For over thirty years, a path had been worn by the appellee's employees from the B&O tracks to those of the appellee. On the day of the accident, the path was icy and covered with a light snow. While descending this path, Kooker slipped and fell, fracturing his back. He testified that he was injured on the property of the appellee, slipping on the downgrade to about a step from the bottom. Other than the appellant's conclusion, there is no testimony as to where the property of the B&O ends and where the appellee's property begins. There is, however, testimony that at times the appellee had salted the path, when it was slippery with ice and snow, and evidence that officials of the appellee railroad, including trainmen, engineers, firemen and conductors, all used this path. At the conclusion of the appellant's proof, the court directed the verdict against the appellant, upon the sole ground that the accident did not happen on the property of the P&LE Railroad but on that of the B&O Railroad and that the appellee had no duty to keep the path in safe condition, notwithstanding evidence of its use by its employees.

It requires no citation of authorities, at this late date, to support the principle that an employer is under obligation to use due care to provide his employees with a safe place to work. If this principle is limited to work actually being done upon property of the employer, there is no proof that Kooker's accident occurred on the property of the B&O rather than on that of the defending railroad. It is true, of course, that...