McGinty v. Pennsylvania R. Co.
| Decision Date | 17 July 1925 |
| Docket Number | No. 4341.,4341. |
| Citation | 6 F.2d 514 |
| Parties | McGINTY v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Paul R. Brown, of Cleveland, Ohio (Howell, Roberts & Duncan, of Cleveland, Ohio, on the brief), for plaintiff in error.
Atlee Pomerene, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.
Before DONAHUE and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
This was an action at law against the Pennsylvania Railroad Company to recover damages for personal injuries alleged to have been received by the plaintiff as a result of the negligence of the defendant. The trial court directed a verdict in favor of the defendant, and the plaintiff has brought the case here on writ of error. The sole question presented is whether the court erred in thus directing a verdict.
Plaintiff was employed by the American Trimming Company (hereinafter called the coal company) in moving loaded coal cars over switch tracks from the point where such cars had been delivered by the defendant to the coal company, on an elevated "hump" track, down an incline, to an unloading device, from which they were automatically unloaded by the coal company into boats at its dock. These tracks, of which there were three a few feet apart, were located on the right of way of the defendant, and were owned, controlled, repaired, and maintained by it. The only relation of the coal company to such tracks was that of a consignee there accepting delivery of loaded freight cars, moving such cars to its dock, and unloading the cars into its boats. During its handling of this carload freight in these unloading operations, the coal company and its employés, including the plaintiff, had temporary possession and control of the cars involved, but not of the tracks of the defendant, nor of the premises of the defendant adjacent thereto. Such tracks and premises remained in the custody and control of the defendant, which recognized and undertook the duty of keeping them in repair. In the course of making repairs on these switch tracks, the defendant, through its authorized servants, acting within the scope of their employment, brought and placed upon the premises just referred to, in the space between two of such tracks and about 18 inches from one of them, three 30-foot 85-pound rails, preparatory to using them in repairing the tracks at a point where the plaintiff and other employés of the coal company were daily engaged, to the knowledge of the defendant, in their work of moving, unloading, and handling the cars already mentioned. It was known to defendant that in doing this work the employés of the coal company were required to run along beside the moving freight cars and climb upon the cars while in motion.
Instead of promptly using these loose rails, the defendant, without any apparent justification or reason, left them where they had been so placed and allowed them to remain there for a period of three months prior to, and up to, the day when the plaintiff received the injuries for which he sues. On that day, while running along, near one of the tracks in question, in order to reach and handle a moving, loaded car, plaintiff tripped over one of the loose rails, lying close to such track, and as a result fell in front of such car, and thereby sustained serious injuries. Plaintiff testified that the car had started down the incline, and that in accordance with the usual manner of handling and stopping the car it was necessary for him to hurry in order to catch it, climb up the ladder, and apply the brakes before it got beyond his reach, and that, although he knew that these loose rails had been lying near the tracks, he did not have his mind on them at this time, but was looking straight ahead, watching the car, preparatory to catching the grab handle on the side of the car. It is apparent that his attention was completely occupied by the need for quick action and concentration upon this car which he was handling.
At the close of plaintiff's evidence, the defendant moved for a directed verdict, on the grounds that the plaintiff's proofs failed to show any actionable negligence on the part of the defendant, and that such proofs showed contributory negligence on the part of the plaintiff, depriving him of the right to recover. The court granted the motion on the first ground mentioned. The trial court was of the opinion, as appears from his oral charge to the jury thus directing a verdict in favor of the defendant, that under the facts disclosed by the testimony the defendant owed to the plaintiff no duty except...
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...v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333; Kelly & Sons v. Howell, 41 Ohio St. 438; McGinty v. Pennsylvania R. Co., 6 Cir., 6 F.2d 514; American Steel & Wire Co. v. Sieraski, 6 Cir., 119 F.2d 709, 710. Upon this point and upon the principal features of th......
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American Steel & Wire Co. v. Sieraski
...duty of exercising ordinary care." Among other authorities, the Ohio Court cites the opinion of this court in McGinty v. Pennsylvania Railroad Company, 6 Cir., 6 F.2d 514, 515, in which, in reversing a directed verdict for the defendant railroad company where an employee of a coal company h......