Churbuck v. Union R. Co.
| Decision Date | 03 January 1955 |
| Docket Number | 5608 |
| Citation | 380 Pa. 181,110 A.2d 210 |
| Parties | George R. CHURBUCK v. UNION RAILROAD COMPANY, a Corporation, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1954
Action against railroad for injuries sustained when railroad's foreman, while demonstrating proper use of pick to remove ice between rails, struck rail so that chip of metal flew into plaintiff's eye. The Court of Common Pleas, Allegheny County, No. 829, April Term, 1951, Clarence B. Nixon, J rendered judgment for plaintiff, and defendant appealed. The Supreme Court, at No. 233, March Term, 1954, chidsey, J held that evidence was sufficient to sustain finding that foreman knew or should have known proper way to use pick in situation, that he used it in an improper and unsafe manner and that plaintiff's injury was consequence reasonably foreseeable by foreman.
Judgment affirmed.
Appeal, No. 233, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, April T., 1951, No. 829, in case of George R. Churbuck v. Union Railroad Company. Judgment affirmed.
Trespass for personal injuries. Before NIXON, J.
Verdict for plaintiff in the sum of $15,000.; defendant's motion for judgment n.o.v. and for new trial refused, and judgment entered on the verdict. Defendant appealed.
Judgment affirmed.
Chauncey E. Pruger, with him Reed, Smith Shaw & McClay, for appellant.
Robert B. Ivory, with him Evans, Ivory & Evans, for appellee.
Before STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Plaintiff, George R. Churbuck, brought this action in trespass against Union Railroad Company to recover damages for personal injuries sustained when a pick wielded by an employe of the defendant hit a steel rail and chipped off a sliver of steel which struck plaintiff's eye. Following a jury verdict in favor of plaintiff in the amount of $15,000, defendant filed motions for judgment non obstante veredicto and for a new trial which were refused by the court en banc. Defendant appeals from the judgment entered on the verdict, assigning as error the refusal of its motions.
Appellant first contends that judgment n.o.v. should have been entered because there was insufficient proof of negligence for submission to the jury. Considering the evidence in the light most favorable to the plaintiff, it appears that following a heavy snow storm in November of 1950, appellant railroad company contracted with the Universal Maintenance & Painting Company to remove the snow from its railroad yard. Plaintiff, with eight or ten other employes of the Universal Company, was working under the direction of appellant's foreman, Theodore V. Kelley. At about 10 or 10:30 P.M. on November 30, 1950, plaintiff was engaged in removing by the use of a pick, hard packed snow and ice between a running rail and a guard rail at a switch point on one of the tracks in the yard. The guard rail, which is a customary device against derailment, was located parallel to and about three inches from the running rail throughout most of its length, the space widening to about five inches at its ends. One Dudash, also an employe of the Universal Company, was similarly removing the ice with a pick between the guard rail and the running rail on the opposite side of the same track. The plaintiff stated that he was chipping the ice out by working in a stopped-over position and swinging the pick very gently. Dudash testified he was performing the work in a similar manner. Neither plaintiff nor Dudash had ever engaged in this kind of work, their regular occupations being of an entirely different nature.
After the two men had been working about five or ten minutes, Kelley, the appellant's foreman, approached and, after watching the operation, took the plaintiff's pick and handed him a flashlight he was carrying, saying, according to Dudash, "... I will show you how you should have handled the pick.". Plaintiff, at Kelley's direction, was standing about five feet to the rear and left of Kelley and was playing the flashlight on the spot where Kelley was about to hit. Kelley swung the pick handle back over his shoulder so that it was horizontal with the ground and made a full hard swing with the result that instead of hitting the ice, he hit one of the rails and a chip of the rail flew and struck plaintiff in the right eye. Both plaintiff and Dudash said that the accident happened on this first swing of the pick by Kelley. Under the testimony the jury could find that Kelley's target area was at a point where the two rails were about three inches apart.
The plaintiff called John Douglas as an expert on the proper and safe way to use a pick in a restricted area such as here involved. Douglas had been in the contracting and construction business for 45 or 50 years. He had had many years' experience in using picks himself and in supervising their use by others, including many removals and relocation of railroad tracks where picks were used in the vicinity of rails; this experience embraced the removal of ice near metal objects. When asked his opinion as to the manner in which appellant's foreman Kelley used the pick under the circumstances, he stated in effect that there was likelihood that a chip of the rail would fly off; that this was foreseeable and that the full swing taken by Kelley was "very hazardous and improper". The likelihood and foreseeability of what happened was confirmed by E. C Stevenson, the assistant supervisor of track and maintenance of the railroad company, who was called as an expert by appellant. Stevenson's job was the supervision of all foremen, including Kelley. On cross-examination he testified that "... sometimes a piece flies and sometimes not when a rail is struck by a pick", and that this was a fact known not only to him but to men working under him as foremen. Kelley, who had worked 16 years for the railroad company, 12 of them as a track laborer, during all of which time he used picks, when called on defense admitted that with a full swing of the pick and a hard blow he would miss the target of ice and hit the rail three or four times out of ten. We think the testimony justified the conclusion by the jury that appellant's employe Kelley knew or should have known the proper way to use a pick in the situation presented; that he wielded the pick in an improper and unsafe manner and...
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