Delaware & HR Corporation v. Bonzik

• Decision Date: 30 June 1939
• Docket Number: No. 6956-6965.,6956-6965.
• Citation: 105 F.2d 341
• Court: U.S. Court of Appeals — Third Circuit
• Parties: DELAWARE & H. R. CORPORATION v. BONZIK et al., and nine other cases.

105 F.2d 341 (1939)

DELAWARE & H. R. CORPORATION v. BONZIK et al., and nine other cases.

Nos. 6956-6965.

Circuit Court of Appeals, Third Circuit.

June 30, 1939.

Paul Bedford and Benjamin R. Jones, Jr., both of Wilkes-Barre, Pa. (Joseph Rasch and Thomas L. Ennis, both of New York City, of counsel), for appellant.

A. M. Lucks and R. L. Levy, both of Scranton, Pa., for appellees.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

MARIS, Circuit Judge.

On July 23, 1933 seven boys, all minors, boarded the defendant's train at Hudson, Pennsylvania, in order to ride to an amusement park about ten miles distant. The train consisted of seventy-seven loaded and seven empty freight cars; was pulled by an engine at the head and pushed by another engine at the rear. The boys said that they climbed onto a car close to the front engine and worked their way back to the forty-fifth car, a flat gondola loaded with sheets of steel. About six miles from Hudson at Avoca the train was derailed and several of the cars, among which was the gondola, were wrecked. Two of the boys were killed and five injured by the loose sheets of steel thrown against them. One of the injured boys and his parents brought a negligence action in the court below which resulted in a verdict for the defendant on November 15, 1934. A motion for a new trial is still pending. That case is not before us. The negligence actions brought by the other injured boys and their parents and the parents of the deceased boys were tried two years later and resulted in a disagreement of the jury on November 14, 1936. On a retrial April 9, 1938 the jury returned verdicts of $5,000 for each of the four injured boys — $5,000 for their respective parents and $5,000 for the parents of the deceased boys. The defendant's motions for judgments notwithstanding the verdicts on points reserved and for new trials were refused. These appeals followed.

Three of the boys testified they obtained permission to board the train from several unidentified members of the train crew. The fourth boy, Adam Zelenski, admitted that he rode on the train without permission. The maximum rate of speed allowed by the defendant for the vicinity where the wreck occurred was twenty miles an hour. This twenty mile speed limit had been in force for eighty-four days before the accident, having been increased from a ten mile speed limit of four years standing. Prior thereto it had been twenty miles per hour. Almost a year before the accident watchmen who had patrolled the tracks from 1929 to 1932 were removed by the defendant. For about two months prior to the accident a sag of approximately four inches in depth tapering to zero at either end had developed along three hundred feet of the track in the vicinity of the derailment. This sag was visible upon inspection but only by one familiar with track conditions. The defendant had filled it with cinder ballast the day before the accident. The wreck occurred on a three degree curve. In that portion of the tracks involved in this case there had been one subsidence within the knowledge of plaintiffs' witnesses. The plaintiffs' testimony was that the train traveled over the stretch of track which included that portion which had been filled with cinder ballast at fifty miles an hour. They introduced expert testimony that a train traveling fifty miles an hour exerts a pressure upon the rails twenty-five times as great as at ten miles an hour; six and one-half times as great as at twenty miles an hour; that the pressure increases in a geometrical ratio with the speed and that the force and pressure exerted by a moving train is greater upon a curve than upon a straight track.

Whether the District Court properly refused to enter judgments for the defendant on the evidence is to be determined by the Pennsylvania law as enunciated by the appellate courts of that state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

By Pennsylvania law the boys were trespassers. We make no distinction between the boys who obtained permission from the train crew and the one who boarded the freight car without permission, for there is not an iota of evidence in the record that any member of the crew had authority to allow riders on the train. On the contrary the rules of the defendant company specifically forbid the granting of such permission. In Tyler et al. v. MacFadden Newspaper Corp., 107 Pa.Super. 166, 163 A. 79, the court held that in the absence of authority from the employer to carry the minor plaintiff as a passenger on the employer's truck the plaintiff was a trespasser. The reason for this ruling is found in Hughes v. Murdoch Storage & Transfer Co., 269 Pa. 222, 112 A. 111, where the court said "The servant (a truck driver) has no right to impose upon his master onerous liability by holding him responsible for the safe carriage of any person he may see fit to accept as a passenger. Such persons, so invited or permitted to ride, should know of this obvious lack of authority from the position the man holds and the character of his employment. If there was some risk in riding the passenger assumed whatever risk there was, as well as that which came from his alighting and leaving the truck. * * * The master, short of wantonness, did not owe him the duty of safe carriage or to see that he safely alighted. The boy's appearance on the truck was a trespass, created by the act of the driver for his own personal pleasure, comfort, or convenience, and that of the boy. He continued as a trespasser and the driver's subsequent conduct in negligently starting the truck before the boy was off was part of the same trespass."

The Pennsylvania courts have frequently had occasion to consider cases in which the plaintiff has been injured while riding on a vehicle with the consent of the driver but without the consent of the latter's employer and against his instructions. In such cases in the absence of wilful or wanton conduct by the employee recovery against the employer because of the negligence of his employee has consistently been denied for the reasons given above. Perrin v. Glassport Lumber Co., 276 Pa. 8, 119 A. 719; Hartigan v. Public Ledger, 291 Pa. 588, 140 A. 524; Zavodnick v. A. Rose & Son, 297 Pa. 86, 146 A. 455; Collins v. Rosenberg, 106 Pa.Super. 269, 161 A. 580; Stefan v. New Process Laundry Company, Inc., 323 Pa. 373, 185 A. 734; Tusko et ux. v. Lynett et al., 326 Pa. 449, 192 A. 410. See also Eldredge — Tort Liability to...