Kennedy v. Pennsylvania Railroad Company, Civ. A. No. 12917.

• Decision Date: 12 January 1959
• Docket Number: Civ. A. No. 12917.
• Citation: 169 F. Supp. 406
• Parties: John P. KENNEDY, Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, Defendant and Third Party Plaintiff. United States Steel Corporation, Third Party Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

169 F. Supp. 406

John P. KENNEDY, Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, Defendant and Third Party Plaintiff.

United States Steel Corporation, Third Party Defendant.

Civ. A. No. 12917.

United States District Court W. D. Pennsylvania.

January 12, 1959.

James P. McArdle, Pittsburgh, Pa.; John M. Feeney, Jr., Pittsburgh, Pa., of counsel, for plaintiff.

Pringle, Bredin & Martin, Reed, Smith, Shaw & McClay, Pittsburgh, Pa.; Bruce R. Martin and Ira R. Hill, Pittsburgh, Pa., of counsel, for defendant.

WILLSON, District Judge.

Counsel for the Pennsylvania Railroad Company, the defendant and third party plaintiff has in his brief set forth a succinct account of the jury's findings. His statement is:

"Five days of trial, culminating in nine hours of deliberation by the jury, resulted in the jury's determination that the Railroad was negligent in failing to supply plaintiff with a reasonably safe place to work because of the condition of the crossing, that is that it was the United States Steel Corporation's (hereinafter called Steel) duty to maintain the crossing in a reasonably safe condition for Railroad purposes, and, that Steel failed to maintain the crossing in reasonably safe condition.

"Since the Railroad has paid the plaintiff's judgment there is nothing before the court but the third-party action."

However, a more detailed account is desirable as pointing up the present issues which this court must decide. Counsel for the third party defendant has given a detailed history of the case in his brief, which has been largely adopted here. He says:

"The plaintiff for many years prior to 1954 had been a conductor for Pennsylvania Railroad Company. In the within action the plaintiff sought to recover damages from the Pennsylvania Railroad Company, defendant, as a result of an accident sustained by him on July 14th, 1954, his action being brought under the Federal Employers' Liability Act, in which he averred that the defendant, Pennsylvania Railroad Company, had failed to provide him with a reasonably safe place to work and had failed to warn him of the dangerous condition of the crossing involved in this accident and specifically averred that his accident was solely caused by the negligence of the Pennsylvania Railroad Company, its agents, servants and employees, in certain respects therein set forth.

"Following the plaintiff having filed his complaint against Pennsylvania Railroad Company, defendant, Pennsylvania Railroad Company brought into this case United States Steel Corporation as third party defendant, alleging, inter alia, that on July 14th, 1954, the Steel Company had ordered forty-five empty cars to be placed for loading at its coal mine at or near Bute, Fayette County, Pennsylvania, and, since no other track was available at the time upon which to place the empty cars except coke yard track No. 5, that the train crew found it necessary to and did move twenty-four of the empty cars already on the south end of the track to the north end over a private road crossing owned by the third party defendant, United States Steel Corporation. It was further averred that in shoving the twenty-four cars over said private road crossing the first and lead car on the train became derailed by reason of clay, dirt and debris on said track and that as the first car of said train proceeded over said crossing the same became derailed. As a result the train struck an abutment, causing the plaintiff, John P. Kennedy, the conductor of said train and the employee of Pennsylvania Railroad Company, to jump or to be thrown from the said first lead car and sustain injuries thereby. In its complaint, Pennsylvania Railroad Company, as third party plaintiff, contended that the third party defendant, United States Steel Corporation, had the obligation to maintain said track and crossing at the time involved and that it failed to maintain said track and crossing at the time involved, and as a result its train was derailed through the alleged negligence of United States Steel Corporation, and for that reason Pennsylvania Railroad Company alleged that it was entitled to indemnity or contribution from the Steel Company to the extent of the whole or part of any sums which the plaintiff Kennedy might recover from Pennsylvania Railroad Company." The jury awarded plaintiff damages in the sum of $8500.00.

"It is admitted by the Steel Company that the crossing involved is owned and was owned at the time involved by it but the Steel Company although denied that Pennsylvania Railroad Company had any right whatever to take the train involved over said crossing, since the Steel Company had advised the Railroad Company some months previous to July 14th, 1954, that the coke ovens located at or near said crossing and along the track involved had been closed down and operations therein had ceased. The Steel Company also admitted at the time of this trial that it had ordered empty cars from Pennsylvania Railroad Company to be placed for loading at another coal mine owned by it near Bute, Fayette County, Pennsylvania, but the Steel Company alleged that no permission was granted by it for the Railroad Company or its employees to bring said empty cars into the area of coke yard track No. 5 even though Pennsylvania Railroad Company found the mine where the cars were originally to be delivered to be on strike on the morning of July 14th, 1954.

"The plaintiff Kennedy testified in this case that upon finding that a strike had taken place at or near the mine where he was originally instructed to place said empty cars, he then received instructions to place part of the empty cars on coke yard track No. 5, these instructions being given him by his superior, a supervisor for Pennsylvania Railroad Company. He further testified that after he had placed the twenty-four empty cars on the south end of the track, that is coke yard track No. 5, he proceeded by foot to the crossing involved in this case and observed the same and found the condition thereof to be good, and in his opinion sufficiently in good condition to take the train across the crossing to the northern end of coke yard track No. 5. He therefore positioned himself on the sill of the first car of the twenty-four empty car train and give a signal to the engineer in the engine which was to push the empty cars, and as the empty cars were pushed across the crossing involved he noticed that the first car on which he was riding had apparently veered to the left and in the direction of an abutment located just north of the crossing, and as the said car in which he was riding was about to strike or actually did strike the abutment he jumped or was thrown from the car and sustained the injuries for which he seeks to recover damages in this case."

Following the jury verdict, this court directed that judgment be entered in favor of the plaintiff and against the Pennsylvania Railroad Company. In the third party action, judgment was entered in favor of the Pennsylvania Railroad Company and against the United States Steel Corporation in the full amount of the judgment and costs entered in favor of the plaintiff against the defendant. Steel filed a timely motion for a new trial. It also filed a motion for judgment notwithstanding the verdict in accordance with its motion for a directed verdict. However, as pointed out in Railroad's brief, the latter motion was not timely. Nevertheless, had it been timely, it would not have been granted, and the motion for a new trial must be denied.

The issues were left to the jury in a special verdict containing six interrogatories. In...