Koshorek v. Pennsylvania Railroad Company

• Decision Date: 29 May 1963
• Docket Number: No. 13814.,13814.
• Parties: Alexander F. KOSHOREK, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

318 F.2d 364 (1963)

Alexander F. KOSHOREK, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.

No. 13814.

United States Court of Appeals Third Circuit.

Argued April 2, 1962.

Reargued November 23, 1962.

Decided May 29, 1963.

Rehearing Denied July 16, 1963.

Kenneth Syken, Richter, Levy, Lord, Toll & Cavanaugh, Philadelphia, Pa. (Edward L. Wolf, Philadelphia, Pa., on the brief), for appellant.

Matthew J. Broderick, Dechert, Price & Rhoads, Philadelphia, Pa., for appellee.

Before BIGGS, Chief Judge, GANEY, Circuit Judge, and SHERIDAN, District Judge.

BIGGS, Chief Judge.

This is an appeal by the plaintiff-appellant, Koshorek, from a judgment based on a jury verdict in favor of the Railroad Company¹ and the denial of his motion for a new trial.² The case arises under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Koshorek, 65 years old at the time of the trial, had been employed by the Railroad for a period of 34 years, the last 18 of which were spent as a car repairman in Passenger Shop Number 1 at Altoona, Pennsylvania. Late in 1957 he began to develop symptoms that indicated possible lung disease and in January of 1958 he stopped work.³

The suit at bar rests on the theory that repair operations conducted in the passenger shop raised dust and sand into the air in sufficient quantities to create a silica hazard and that the Railroad had been negligent in failing to mitigate or prevent this hazard. Koshorek contends that his lung condition, diagnosed as pulmonary emphysema and fibrosis⁴ was attributable to silicosis contracted as a result of exposure to the silica hazard.

The evidence at the trial on the issue of whether a silica hazard had existed in the shop was sharply conflicting. Koshorek testified that metal covering plates on the bottoms of railroad cars were customarily dropped to the floor of the shop in order to gain access to the underside of the cars for repairs and that large amounts of dirt and sand were caused by this to fly into the air. He also stated that high pressure air hoses were used inside the shop for cleaning the cars, causing clouds of dust to circulate, and that the air inside the building was dusty and cloudy on several occasions. Other employees, however, testified that the operations referred to were rarely if ever performed inside the building, that the air was clear and shop well-ventilated, and that respirators were always available in the event they might become necessary, though Koshorek had never asked for one.

The medical evidence also was some-what inconclusive, although the diagnosis of Koshorek's condition as pulmonary emphysema and fibrosis was generally agreed upon. His medical experts testified that his condition was due to silicosis which in turn had been caused by exposure to the alleged silica hazard in the shop. On cross-examination, however, these witnesses admitted that they had not made any actual dust studies of the air in the shop and, further, that the fibrosis could have been caused by many things other than silicosis. Medical experts called by the Railroad stated that Koshorek was not suffering from silicosis and that his lung condition had been caused by the inhalation of coal dust⁵ and was not causally related to any work performed while in the employ of the Railroad.

Koshorek contends that the trial court committed error in refusing his request that the jury be instructed that he did not assume the risks of his employment.⁶

Judge Egan charged the jury on the issue of comparative negligence, instructing them that even if they should find Koshorek to have been negligent this would not bar his recovery but instead would mitigate the damages,⁷ but the court's instructions did not distinguish the doctrine of comparative negligence from that of assumption of risk. In fact, no reference to assumption of risk was made at all, either by name or in substance. Koshorek had requested the court to define the doctrine of assumption of risk and to charge that under the Federal Employers' Liability Act assumption of risk could not constitute a full or even a partial defense.⁸ The court denied this request, stating that the point had been adequately covered by its charge as to the Railroad's affirmative duties.⁹ We think a more detailed explanation to the jury than that given by the trial court was required under the circumstances of this case.

The doctrine of comparative negligence has been a part of the Federal Employers' Liability Act since its original enactment. See 45 U.S.C.A. § 53.¹⁰ The original Act also incorporated the doctrine of assumption of risk, which provided a full defense for the carrier except in cases where the injury resulted from the carrier's violation of safety statutes. 35 Stat. 66 (1908).¹¹ In 1939, however, the Act was amended and the defense of assumption of risk abrogated in all cases where the injury resulted from the negligence of the carrier. 53 Stat. 1404 (1939), 45 U.S.C.A. § 54.¹² See Tiller v. Atlantic Coast Line R. R., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943); Atlantic Coast Line R. R. v. Burkett, 192 F.2d 941 (5 Cir. 1951.)¹³

The retention of the doctrine of comparative negligence and the abrogation of the defense of assumption of risk necessitates that a careful distinction between the two concepts be made in a case such as that at bar arising under the Act. If Koshorek's own conduct in relation to his injury be characterized as contributory negligence the Railroad may have a partial defense as to the amount of damages. If the same conduct be found to have constituted assumption of risk Koshorek's right to recover could not be affected in any respect. In Prosser, Torts § 55 (1955), 304-305, it is stated: "* * * Where the two defenses overlap, there is a great deal of confusion of the two. Ordinarily it makes little difference which the defense is called. The distinction may become important, however, under such statutes as the Federal Employers' Liability Act, which has now abrogated the defense of assumption of risk entirely, but has left, contributory negligence as a partial defense reducing the amount of recovery. In working out the distinction, the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may co-exist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care." See also Potter v. Brittan, 286 F.2d 521 (3 Cir. 1961).

The Railroad relies on Seaboldt v. Pennsylvania R. R., 290 F.2d 296 (3 Cir. 1961), in support of the position that assumption of risk was properly not included in the trial court's charge to the jury. It is urged that assumption of risk was not a defense nor was it even mentioned in the trial of the case at bar and therefore would not be a proper subject of instruction to the jury.

In Seaboldt the plaintiff employee had been injured as a result of straining to open a gate leading to a track siding. The trial court's charge to the jury included an instruction on contributory negligence. The plaintiff's attorney excepted to that portion of the court's charge, claiming that the judge had confused contributory negligence with assumption of risk "`which is no defense under the statute.'" The trial judge then gave an additional instruction to the jury: "`I want to say to you that this plaintiff does not assume any risk of his employment. The doctrine of assumption of risk has been abolished. There is no assumption of risk in his employment.'" An additional instruction on the definition of assumption of risk was given immediately before the jury retired in response to a question from one of the jurors. Verdict and judgment were rendered for the plaintiff, and the defendant railroad appealed. We reversed the trial court and remanded the case on grounds other than the alleged error in the charge to the jury. Judge Goodrich stated, however, that, "It was unfortunate to bring in this business of assumption of risk at this stage of the case. No one had mentioned it either in pleadings, argument, testimony or written documents. No one would have thought of it. * * * For this difficult concept to be thrown into the jury's mind at the last minute without much explanation was almost sure to have left it in confusion. * * * This new matter coming in at the end was enough to confuse the most conscientious jury." Seaboldt v. Pennsylvania R. R., supra, 290 F.2d at p. 300.

We think that the Seaboldt decision cannot be regarded as determining the appeal at bar. As we have said Seaboldt was decided on grounds other than that of error in the charge. The language of the court relating to that issue is, at most, dictum.¹⁴ Moreover, it appears from the language of the opinion as quoted above, that this court's primary objection to the inclusion of assumption of risk in the charge was that the doctrine was "thrown into the jury's mind at the last minute" without clear explanation of the doctrine and its relation to comparative negligence. See Seaboldt again at p. 300 of 290 F.2d.

Nor is De Pascale v. Pennsylvania Railroad Company, 180 F.2d 825 (3 Cir. 1950), helpful to the defendant. In the cited case a railroad conductor brought suit against the railroad under the Federal Employers' Liability Act for injuries suffered as the result of a fall while he was walking in the train yard. The plaintiff testified that the ground beneath his feet had simply given way and his leg "went down into the hole completely." He further testified that the ground "looked just like the rest, it seemed solid." At the close of the evidence, the plaintiff...