Gowins v. Pennsylvania Railroad Company

• Decision Date: 06 March 1962
• Docket Number: No. 14632.,14632.
• Citation: 299 F.2d 431
• Parties: George W. GOWINS, Plaintiff-Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

299 F.2d 431 (1962)

George W. GOWINS, Plaintiff-Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.

No. 14632.

United States Court of Appeals Sixth Circuit.

March 6, 1962.

C. Richard Grieser, Dombey, Tyler, Richards & Grieser, Columbus, Ohio, for appellant.

Robert L. Barton, Bricker, Evatt, Barton, Eckler & Niehoff, Columbus, Ohio, for appellee.

Before MILLER, Chief Judge, SIMONS, Senior Circuit Judge, and DARR, Senior District Judge.

SHACKELFORD MILLER, Jr., Chief Judge.

Appellant brought this action under the Federal Employers' Liability Act, Section 51 et seq., Title 45 U.S.C.A., and the Boiler Inspection Act, Section 22 et seq., Title 45 U.S.C.A., to recover damages for injuries suffered while working as a conductor of a crew operating a freight train of the appellee, The Pennsylvania Railroad Company. At the conclusion of the evidence, the District Judge granted the appellee's motion to withdraw the allegations under the Boiler Inspection Act from the consideration of the jury and the case was submitted to the jury on the issue of negligence under the Federal Employers' Liability Act. The jury returned a verdict for the appellee.

The job orders for the crew directed them to operate a freight train from Georgetown, Ohio to Cadiz Junction, Ohio, and then to take another train from Cadiz Junction to Georgetown, Ohio. The crew attached two locomotives and a caboose to the rear end of the train and also attached two other locomotives on the front end of the train and carried out the assignment.

When the train returned to Georgetown, appellant got off of one of the locomotives, lined up a switch and went to a telephone located at that point to report the train clear of the switch. He then walked to a station wagon about 200 to 250 feet away and talked to its driver. He waited there about ten minutes until the locomotives returned, after having taken the cars into the yard. As they approached, at a speed of from eight to ten miles per hour, appellant attempted to get on the engine to ride back to the telephone to report where he put the caboose. He testified that when he went to get on the engine, "I slipped and tripped over a ground air hose," that he was struck by the back grab handle of the front step, "swirled around * * * and knocked to the ground."

The air hose referred to was approximately an inch and a half hose and was used to put air into the cars. One end of the hose was attached to an iron air pipe and the other end would be attached to a car when in use and lying free when not in use. There was testimony that at the time in question the air hose was not in use and was lying on the ground outside of the ties in violation of Safety Rule No. 4533 of the appellee pertaining to maintenance of equipment. Appellant admitted on cross-examination that he saw the air hose on several occasions that day, that he considered the air hose in that position dangerous at that time, but that he did not do anything about it because it was not his job. Appellee also put in evidence Rule No. 1408, which read, "Getting on or off moving equipment, except when necessary for the proper performance of duties, is prohibited." Appellant claimed that his attempt to board the moving engine was necessary in the performance of his duty at the time.

The District Judge submitted to the jury the question of negligence on the part of the appellee and the question of contributory negligence on the part of the appellant. One of appellant's main contentions is that the District Judge erred in not instructing the jury, as requested by appellant, that the doctrine of assumption of risk was not a defense to the action, Section 54, Title 45 U.S. C.A., and that the charge of the District Judge in effect left the jury with the belief that assumption of risk was a defense to the action.

Assumption of risk as a defense, where there is negligence on the part of the employer, has been written out of the Act. But when used in the sense that the employer is not liable for those risks which it could not avoid in the observance of its duty of care, it has not been written out of the law. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, concurring opinion of Mr. Justice Frankfurter at page 72, 63 S.Ct. 444, 453, 87 L.Ed. 610, where it was said, "Because of its ambiguity the phrase `assumption of risk' is a hazardous legal tool. As a means of instructing a jury it is bound to create confusion. It should therefore be discarded." Assumption of risk was not pleaded as a defense by the appellee. Contributory negligence was pleaded by appellee, and under that issue an instruction permitting the jury to consider appellant's actions in the light of a dangerous condition known to him was proper. Section 53, Title 45 U.S.C.A., Chicago, St. P. M. & O. R. Co. v. Arnold, 160 F.2d 1002, C.A. 8th. If the instruction on contributory negligence was a correct one, we do not think it was error to refuse to instruct on the question of assumption of risk. DePascale v. Pennsylvania R. Co., 180 F.2d 825, 827, C.A. 3rd. We are of the opinion that the District Judge correctly instructed the jury on the issue of contributory negligence. Atlantic Coast Line R. Co. v. Dixon, 189 F.2d 525, 527, C.A. 5th, cert. denied, 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628.

However, under the Boiler Inspection Act, negligence is not the basis of liability and the partial...