Idzojtic v. Pennsylvania Railroad Company

• Decision Date: 10 September 1970
• Docket Number: No. 17957,17958.,17957
• Parties: Nick IDZOJTIC and John Skocich v. The PENNSYLVANIA RAILROAD COMPANY, a corporation v. Edward KOZORA. Nick Idzojtic, Appellant in No. 17,957 John Skocich, Appellant in No. 17,958.
• Court: U.S. Court of Appeals — Third Circuit

431 F.2d 1029 (1970)

Nick IDZOJTIC and John Skocich v. The PENNSYLVANIA RAILROAD COMPANY, a corporation v. Edward KOZORA.

Nick Idzojtic, Appellant in No. 17,957

John Skocich, Appellant in No. 17,958.

Nos. 17957, 17958.

United States Court of Appeals, Third Circuit.

Argued December 4, 1969.

Decided September 10, 1970.

Louis M. Tarasi, Jr., Conte, Courtney & Tarasi, Pittsburgh, Pa. (John Alan Conte, Pittsburgh, Pa., on the brief), for appellants.

Aloysius F. Mahler, Pittsburgh, Pa., for appellee.

Before GANEY, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

GANEY, Circuit Judge.

This case involves consolidated appeals of two plaintiffs from an order of the district court denying their motions for a new trial in an FELA action in which the jury found that the railroad was negligent but that its negligence played no part in causing the accident.¹ The railroad had brought Edward Kozora, an uninsured motorist, into the case as a third-party defendant. Plaintiffs did not amend the two-count complaint to include him as a defendant.² Their main point for reversal is that the trial judge committed error in his charge to the jury.

The facts giving rise to the accident and the injuries claimed by plaintiffs may be briefly stated as follows: At about 3:30 a. m. on the drizzly morning of January 25, 1964, plaintiff, Nick Idzojtic and John Skocich, were returning to the Conway Yards after they had replaced a derailed gondola car on the tracks at the railroad's Allegheny Yards in Pittsburgh, Pa. They were riding side by side in the front seat of an open-bed stake-body Ford truck being used as a wreck truck and owned by the railroad. It was being operated by another railroad employee, Paul Peter Fishovitz, and was proceeding northwardly at the rate of about 35 miles per hour in the right-hand lane of the Ohio River Boulevard (Route 65), a four-lane concrete paved highway, in the vicinity of Baden, Pa. The area was without overhead lights and the road was straight and level. A car being driven by James J. Gameos had been following the truck in the right-hand lane and moved into the left lane to pass it. While Gameos was still in the left lane, two to three car lengths behind the truck, a car being driven by Kozora, third-party defendant, in the right lane passed him on his right and crashed into the wrecking truck in the right lane. The wrecking truck pulled up on the berm east of the northbound right lane approximately 150 feet beyond the point of impact with its right taillights smashed and the right mud flap missing. The plaintiff, Idzojtic, testified that after the impact the left taillight was burning.

Kozora, called as a witness by plaintiffs, testified that immediately prior to the collision he was traveling 30-35 miles per hour with his low-beam headlights on in the left lane and a car in front of him was spraying water on his windshield and he steered into the right lane to pass that car. He explained that his windshield wipers were not doing such a good job on the "mud" splashing up from the car ahead and was leaving more or less of a smear on his windshield. When he passed that car Kozora "could see very good" in returning to the right lane to permit, as he said, a car behind him to pass. While he was proceeding in the right lane at the speed of 40 to 45 miles per hour, he did not see any car on his left nor anything within the range of his headlights, and then almost immediately he struck the rear of the wrecking truck. He said prior to the collision he never saw the truck or its rear lights.³

Plaintiffs testified that there were two impacts, and they were thrown backward by the first, as a result of the truck being struck in the rear, and then forward by the second which they claimed was caused by the forward shifting of the heavy materials and tools, such as 500 pound airjacks, wooden blocking and wedges, cables, sledge hammers, picks, shovels and crow bars, in the bed of the truck. Idzojtic stated also that after the second impact or jolt the right cab door came open and he held on to the top of the window frame while the truck slowed down but was thrown out of the cab before the truck came to a stop.

Fishovitz, the driver of the car, called as a witness on behalf of the railroad, agreed that there was an initial impact but did not notice another one. He stated that the impact caused the truck to lurch forward suddenly, "seemed like it increased speed all of a sudden for a second."

At the trial plaintiffs maintained that the railroad was negligent in operating a vehicle on the highway which was defective in the following particulars: (1) The right front door was without a window glass which required them to cover the opening with a sheet of cardboard material; (2) Tools and materials were loaded in its bed without being secured; (3) The heater was not functioning; (4) The right rear mud flap was missing, and (5) The rear taillights were not burning or were invisible.⁴ The railroad did not contradict the fact that it was aware that the door glass window was missing or that some of the tools and materials being carried in the bed of the truck were not secured. It did dispute the other particulars and offered evidence to show that the heater was working and that the right rear taillight was smashed and the right rear mud flap was torn off as a result of the collision.

The trial court submitted six special interrogatories to the jury.⁵ He charged the jury, regarding the first two, as follows, in part:

"Your answers to these questions will constitute your verdict in this case.

"1. Did the plaintiffs prove by a fair preponderance of the evidence that the defendant Railroad was negligent?

"Now, you answer that question yes or no.

"Only if you answer it yes, answer question 2.

"2. Did the plaintiff prove by a fair preponderance of the evidence that the Railroad\'s negligence caused the accident in whole or in part?

"You answer that yes or no.

"Only if your answer to question 2 is yes, you answer the remaining questions. If you should answer question 2 no, your labors are over. You answer no more questions. You should return your verdict to the Court." (Emphasis supplied.)

Then followed this portion of the charge:

"Now, the Federal Employers Liability Act provides, in its pertinent part, as follows:

"Every common carrier by railroad, while engaging in commerce between the several states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.

"That is for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its equipment.

"There is no doubt about it that this truck was part of the railroad\'s equipment. Under the law, in order to find the defendant railroad liable in damages to these plaintiffs, you must find from the evidence that the railroad\'s truck was defective, due to its negligence, in that its taillights were not functioning, and that this negligence of the railroad, in whole or in part, caused the accident and the injuries to the plaintiffs.

"If you find that the taillights on the railroad\'s truck were defective and were not illuminated at the time of the accident, due to the railroad\'s negligence, then you would answer the first question yes.

"Then if you find from the evidence that this negligence played any part, even the slightest, in causing the accident and the injuries to the plaintiffs, then you would answer question 2 yes.

"Also, under the evidence, if you believe that plaintiffs, you could find that the railroad was negligent in failing to replace glass in the window space in the right-hand door, in failing to have mud flaps at the rear of the rear wheel, and in permitting tools, material and so forth, to lie loose and unsecured in the bed of the truck, and perhaps in failing to have a functioning heater.

"The railroad denied negligence in the above respects except it was admitted that it had no glass in the window space on the right side.

"But even if you believe the plaintiffs and answer the first question yes, there is no evidence that the absent window or the absent mud flaps or the failure to secure tools and materials, or the malfunctioning heater played and part in causing this accident, and your answer to question 2 would be no."

However, it is to be noted that the second question made reference to the accident only and said nothing concerning injuries. Proper exception was taken by the plaintiffs to this charge. This confusion of "accident" and "injuries" and repeated reference to "accident" alone and the use of the word "accident" in the second question submitted to the jury plus the elimination of all alleged negligence except the question of whether the taillights were lit and visible within a range of 500 feet as provided in § 801(d) of the Pennsylvania Motor Vehicle Code, 75 P.S., in our judgment, is reversible error. Section 1 of the FELA⁶ does not speak of "accident" but only of "injuries" and while under certain circumstances, the substitution of one for the other may be of no consequence, here it is crucial. For example, if there were no other factors present here than that the Kozora car struck the wrecking truck of the defendant due to the negligence of the defendant railroad company having no rear lights on the truck which were lit or which were invisible by reason of dirt and mud covering them, and if there was proof that it caused the injuries in whole or in part, then the use of the word "accident", while not in strict compliance with the statute, would not have been harmful error. However, here there was direct evidence by the plaintiffs with respect to the tools in the bed of the truck and since the jury found under interrogatory No. 1 that there was negligence on the part of the defendant, we cannot rule out the unsecured tools as an act of...