DiFrischia v. NEW YORK CENTRAL RAILROAD COMPANY

• Decision Date: 28 August 1962
• Docket Number: No. 13721.,13721.
• Parties: Richard D. DiFRISCHIA v. NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

307 F.2d 473 (1962)

Richard D. DiFRISCHIA v. NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellant.

No. 13721.

United States Court of Appeals Third Circuit.

Argued January 12, 1962.

Filed August 28, 1962.

As Amended October 4, 1962.

COPYRIGHT MATERIAL OMITTED

James R. Orr, Pittsburgh, Pa., (Ernest R. Dell, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellant.

Paul E. Moses, Pittsburgh, Pa., (Robert B. Ivory, Evans, Ivory & Evans, Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.

J. CULLEN GANEY, Circuit Judge.

Appellee was injured in a railroad crossing accident on Route 7, approximately one-half mile south of Middleport, Meigs County, Ohio, on January 4, 1957. He recovered a verdict in the United States District Court for the Western District of Pennsylvania against the appellant railroad.

The railroad claims that the trial court erred in charging the jury that if they found that it violated the Safety Appliance Acts (45 U.S.C.A. §§ 1-9) and the rules of the Interstate Commerce Commission, which together require that a "train" shall not be operated without having air brakes functioning in at least 85% of the cars being moved, they should find the railroad negligent. The section of the Safety Appliance Acts requiring power brakes contains no exceptions. However, court decisions have stated that switching, classifying and assembling cars within railroad yards for the purpose of making up trains, and the movement of a few cars at a time for short distances, involving coupling and uncoupling, are not train movements. United States v. Northern Pacific Ry. Co., 254 U. S. 251, 41 S.Ct. 101, 65 L.Ed. 249 (1920); United States v. Seaboard Air Line R.R. Co., 361 U.S. 78, 80 S.Ct. 12, 4 L.Ed.2d 25 (1959). Nevertheless, movements "which, though miniature when compared with main-line hauls, have the characteristics of the customary `train' movements and its attendant risks are to be included." United States v. Seaboard Air Line R.R. Co., supra, at p. 83, 80 S.Ct. at p. 16. In the case before us, a string of loaded freight cars was stationed on track No. 13 in the railroad's yard. The thirty-seventh car in the string was destined for the repair shop and was so marked. The string of cars was uncoupled after the marked car. The air hose on the remaining 36 cars was left unbroken but was not attached to the diesel engine equipped to handle air brakes. A single connection between the engine and the first of the 37 cars would have permitted the use of air in the air line for all but the disabled car. To put the disabled car on the shop repair track ¼ of a mile away, that car had to be drawn with the 36 others on to the main track past a switch, then pushed back on to another track at the switch, and then "kicked" on to the shop repair track. After this operation the remaining 36 cars would be drawn back and placed in their original position on track No. 13. Because of the length of 37 cars, it was necessary for the engine to cross Route 7 in order to get the cars off or on track No. 13. The crossing of Route 7 could have been obviated in this operation if a lesser number of cars were drawn, but it would have required more time to complete the movement. According to a survey made by appellant in May of 1955, 278 passenger cars and 60 trucks traversed the railroad crossings on Route 7 between 6 and 7 o'clock in the morning. Under these circumstances, the trial court correctly ruled that the engine and 37 cars were a "train" within the meaning of the Safety Appliance Acts. See Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 39 S.Ct. 355, 63 L.Ed. 757 (1919). The fact that switching operations preceded or followed the movements will not remove it from the statutory requirements. United States v. Seaboard Air Line R.R. Co., supra, 361 U.S. at pp. 81-82, 80 S.Ct. 12.

Not content with establishing that the hose which carried the air for the freight car brakes was not hooked up to the engine, and obtaining an admission from the engineer that he was not looking in the direction the train was traveling between the time it entered the crossing area and the moment of collision, plaintiff offered evidence to show that the crossing was extra hazardous or unusually dangerous and that defendant knew this fact. In this connection, the trial court, over defendant's objections, permitted plaintiff's counsel to read to the jury defendant's answers to interrogatories and request for admissions. These answers and admissions gave information concerning eight collisions between motor vehicles and defendant's trains at the crossing during the hours of darkness between August 11, 1950, and September 17, 1956, four of which occurred while the train was standing on the crossing. Also over defendant's objection, plaintiff's counsel was allowed to read to the jury, from the deposition of the Prosecuting Attorney of Meigs County, questions and answers as to the number of vehicle accidents occurring at the crossing from 1950 to 1955 during the hours of darkness. The deposition listed fourteen accidents from November 24, 1950, to November 10, 1955, and gave the times and dates of the accidents and the drivers' names. The list contained no other explanation. The trial judge instructed the jury that the information concerning the accidents was permitted to be introduced solely for the purpose of showing that the railroad had notice of the nature of the crossing, and not to show negligence on the part of the railroad. In Ohio, unless the crossing is unusually hazardous, a railroad need comply only with the statutory provisions and the orders of the Public Utility Commission regarding warning signs or signals. A crossing is unusually hazardous if there is substantial risk that a driver in the exercise of ordinary care may be unable to avoid collision with a train operated over the crossing in compliance with statutory requirements. Hood v. N. Y., Chicago & St. Louis R. Co., 166 Ohio St. 529, 144 N.E.2d 104 (1957). In Pennsylvania, under some circumstances where the cause of the accident or the defective or dangerous condition is unknown or disputed, evidence of the occurrence of similar accidents is admissible, in the sound discretion of the trial judge, for the purpose of establishing (1) the character of the place where they occurred, (2) their cause, (3) the imputation of notice to the owner of the place where they occurred, and (4) the likelihood of injury. Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87 (1960); Yoffee v. Pa. Power & Light Co., 385 Pa. 520, 542-543, 123 A. 2d 636 (1956); Fisher v. Pomeroy's, Inc., 322 Pa. 389, 185 A. 296 (1936); Ringelheim v. Fidelity Trust Co., 330 Pa. 69, 71, 198 A. 628 (1938). "Knowledge of the likelihood of injury is imparted by information of like occurrences under similar circumstances, and is a fact to be considered by the jury in determining whether proper precautions were taken. Hollis v. U. S. Glass Co., 226 Pa. 332, 75 A. 409."...