Mach v. Pennsylvania Railroad Company
| Decision Date | 15 May 1963 |
| Docket Number | No. 14171.,14171. |
| Citation | 317 F.2d 761 |
| Parties | Nickolaus MACH, v. The PENNSYLVANIA RAILROAD COMPANY, a Corporation, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Hubert I. Teitelbaum, Pittsburgh, Pa., for appellant.
Hymen Schlesinger, Pittsburgh, Pa. (Louis C. Glasso, Pittsburgh, Pa., on the brief), for appellee.
Before HASTIE, GANEY and SMITH, Circuit Judges.
Suing under the Jones Act, 46 U.S. C. § 688, Nickolaus Mach has recovered a $48,000 judgment from his employer, Pennsylvania Railroad, for personal injuries incurred during the course of his employment. The principal question on this appeal is whether the defendant's motions for directed verdict or a new trial, which the court overruled, should have been granted on the ground that the evidence submitted to the jury, under a charge of which no complaint is made here, did not justify findings that plaintiff was employed as a "seaman" at the time of his injury and that the injury was caused by defendant's negligence.
The evidence was sketchy, but it did show this much. Plaintiff was employed as a bargeman at defendant's dock on the Ohio River at Conway, Pennsylvania. At this dock, coal is transferred from river barges to railroad cars. Lacking means of self-propulsion, the loaded barges arrive under tow at a mooring area. There the towing vessel releases its barges, and bargemen, employed by the railroad, take over the handling of the barges. The bargemen first moor them not far from the unloading point. Then, when the time arrives to unload a particular barge, cables, extending from the barge to the dock, are used to maneuver the vessel downstream along the dock until it is in position under the unloading crane. After the unloading, the bargemen again use cables to maneuver the empty barge to a mooring place downstream and tie it to other moored barges. In these maneuvers, the bargemen ride the barges and secure or pay out cable as may be required. In addition to maneuvering and securing the barges, the bargemen also place lights on the vessels and pump water from them as necessary. In brief, all the handling and attending of barges, from the time a tow boat releases its flotilla, through the unloading, until the time when the empty barges are towed away, is done by the bargemen. The bargemen also have duties ashore in connection with the movement of railroad cars to and from the place where the crane loads them with coal from barges. The testimony as to the portion of an eight hour work day which a bargeman normally spends in handling barges ranges considerably, from an extreme of less than one hour to as much as five hours.
The accident in question occurred when the plaintiff and others were moving a loaded barge into position for unloading. Plaintiff fastened his end of a spacer cable to an "eye" at one end of the vessel, while another bargeman performed a similar operation at the other. Both men then moved toward the mid-ship area, walking along the gunwale. As they were walking, the spacer cable parted with a noise and a section of it struck plaintiff so violently that he was thrown into the air and landed unconscious in a barge. This is the injury for which he sues.
There was testimony that a spacer cable is controlled from the dock by a power winch operated by the defendant's crane operator, and that the normal operating procedure is for the crane operator to await a bargeman's signal before tightening the cable to draw the barge along the dock. The only testimony of what happened in this case is that the bargemen did not give the signal, but as they walked along the gunwale the cable snapped while under so much tension that the lash of a released section knocked the plaintiff into the air. In these circumstances we think it reasonable for a jury to infer either that the cable was inadequate for the purpose of pulling the barge along the dock, or that the crane operator, without waiting for the bargeman's signal, so operated the winch as to place undue strain upon the cable. Indeed, no alternative inference, under which the defendant would not be at fault, is suggested by anything in the record. Thus, negligence was a jury question, and there was no error in its handling or disposition.
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