Bernola v. Pennsylvania R. Co., 5131.

• Decision Date: 21 December 1933
• Docket Number: No. 5131.,5131.
• Parties: BERNOLA et al. v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

68 F.2d 172 (1933)

BERNOLA et al. v. PENNSYLVANIA R. CO.

No. 5131.

Circuit Court of Appeals, Third Circuit.

December 21, 1933.

E. C. Higbee, of Uniontown, Pa., and Fred J. Jordan and Murray J. Jordan, both of Pittsburgh, Pa. (John Duggan, of Pittsburgh, Pa., of counsel), for appellants.

Wm. B. McFall, Jr., and Dalzell, Dalzell, McFall & Pringle, all of Pittsburgh, Pa., for appellee.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a judgment of the District Court for the Western District of Pennsylvania. The appellants, administrators of the estate of Giovanni Bernola, brought suit in trespass to recover from the Pennsylvania Railroad Company damages resulting from the appellee's alleged negligence in causing the death of their decedent. The suit is brought under the provisions of the Federal Employers' Liability Act § 1 (45 USCA § 51).

The testimony offered on behalf of the appellants is to the following effect: The decedent was employed as a member of a section gang of four men who were operating a mole upon its own temporary tracks. The mole was propelled by a gasoline engine, the exhaust of which caused considerable noise. Owing to an S curve in the tracks, trains were obstructed from view until within approximately 900 feet from the place where the decedent was working. The decedent was supplied with a whistle with which to warn his coemployees of the approach of a train. Although, for this reason, he had greater responsibility than the other laborers of his gang, he received the same rate of wages and had the same status. The appellee's supervisor, who was at the location where the section gang was working, instructed them to discontinue working for the day. Before quitting, it was necessary for the gang to remove the temporary tracks upon which the mole operated. The decedent, without taking any precautions for a lookout, stooped to remove one of the pins of the temporary tracks. While in that position, with his back turned, he was struck and killed by a train traveling at the rate of fifty miles an hour. The train was an extra and was unscheduled. No signals or warnings of its approach were given. The fireman was not at his seat in the cab. Apparently none of the train crew saw the decedent, since the train did not slacken its speed after the accident.

The trial court entered a nonsuit and later refused the motion for the removal of the nonsuit and for a new trial. Judgment was entered for the appellee.

The jury could have found from the evidence that the decedent was guilty of negligence because of his failure to comply with the appellee's safety rule, which required that: "Foremen, watchmen and others in charge of men engaged in work on or about the tracks must provide themselves with a whistle, which must always be used to warn men of approaching trains."

The Federal Employers' Liability Act (section 1) imposes liability upon the carrier for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 USCA § 51. Thus an affirmative finding that the decedent's infraction of the safety rule was a concurrent cause does not preclude a finding by the jury that his death was in part due to the negligence of the appellee's servant. Rocco v. Lehigh Valley Railroad, 288 U. S. 275, 53 S. Ct. 343, 77 L. Ed. 743.

However, the question here is whether or not the railroad company owed Bernola any duty to warn him of the approach of the train, and to keep a lookout for him; or whether or not the failure of Bernola, as foreman of his gang, to look out for the approach of trains in order to protect himself and warn his men was the primary cause of his death. If the railroad company did not owe any duty to him under the circumstances, it was free from negligence, and the failure of the engineer to give warning of the approach of the train was immaterial.

The appellant says that the case is controlled by the decision of the Supreme Court in Rocco v. Lehigh Valley Railroad Co., 288 U. S. 275, 53 S. Ct. 343, 77 L. Ed. 743, while the railroad company says that it is controlled by those cases of which Connelley v. Pennsylvania R. Co. (C. C. A.) 228 F. 322, 323; Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758; Chesapeake & Ohio Railway Company v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914, are typical. These cases hold that it is the duty of a person employed on the tracks of a railroad to exercise vigilance for his own safety, to keep out of the way of moving trains, at least on straight tracks, and that an employee working on a roadbed assumes the risk incident to such employment. In such cases the railroad does not owe the workman the duty of warning him of the approach of trains. In the case of Connelley v. Pennsylvania Railroad Company, supra, this court, speaking through Judge Buffington, said:

"It is an obvious fact that many occupations, as for example a powder mill operator, a structural iron worker, a diver, a blaster, a trackwalker, necessarily subject those who follow them to great dangers. When therefore a man contracts for such employment, he knows and takes on himself the risks and dangers incident to such dangerous work. His assumption of those obvious and unavoidable risks is in the very nature of things part of his employment. It follows therefore that the employer violates no legal duty to the employee in failing to protect him from dangers...