O'MARA v. Pennsylvania R. Co.
| Decision Date | 08 April 1938 |
| Docket Number | No. 7489.,7489. |
| Citation | 95 F.2d 762 |
| Parties | O'MARA v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Anderson & Lamb, of Youngstown, Ohio, for appellant.
R. W. Shumaker, of Toledo, Ohio (Fraser, Effler, Shumaker & Winn, of Toledo, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
Injured while alighting from a baggage truck of the appellee railroad after transferring mail and baggage therefrom to a passenger train, the appellant sued for damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. At the conclusion of his evidence the court directed a verdict for the defendant on the ground that there was failure of evidence to show its negligence. The only error assigned is to the granting of the peremptory instruction.
Upon the night of the accident the appellant, who had been a railroad employee for many years, was the night ticket clerk of the defendant at its passenger station in Van Wert, Ohio. He had been employed in that capacity for a period of ten months prior to his injury, and during his working hours was the railroad's sole employee at the station, and in full charge. His duties required him to sell tickets to passengers, handle mail and baggage, and keep the station platform clear of refuse and foreign material. The station platform of the defendant at Van Wert lies between two streets, is raised about a foot from the roadbed, and serves the public as a sidewalk. It is lighted by a 100-watt electric light, which it was the duty of the appellant to turn on from a switch in the station when a train approached. On the night of the injury he turned on the light, wheeled two baggage trucks to the platform, and transferred mail therefrom to a recently arrived train. He then jumped from the back end of one of the trucks a distance of three feet to the platform. In doing so his foot struck a bolt lying there, and he was injured. He had not seen the bolt before, and could not say how it came to be upon the platform. It was of a type used by the railroad on the truck structure of cars, and was one and a half inches in diameter, eight inches long, with a square head, weighing approximately half a pound.
The negligence alleged was the failure of the defendant to provide a safe place for the plaintiff to work. There was no proof of such negligence attributable either to the railroad or to any fellow servant of the plaintiff. No one knew how the bolt came to be...
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