Mills v. Pennsylvania New York Cent. Transp. Co.

• Decision Date: 24 December 1968
• Docket Number: No. 68-189,68-189
• Citation: 243 N.E.2d 99,45 O.O.2d 447,16 Ohio St.2d 97
• Parties: , 45 O.O.2d 447 MILLS, Appellant, v. The PENNSYLVANIA NEW YORK CENTRAL TRANSPORTATION CO., Appellee.
• Court: Ohio Supreme Court

Page 97

16 Ohio St.2d 97

243 N.E.2d 99, 45 O.O.2d 447

MILLS, Appellant, v. The PENNSYLVANIA NEW YORK CENTRAL TRANSPORTATION CO., Appellee.

No. 68-189.

Supreme Court of Ohio.

Dec. 24, 1968.

Syllabus by the Court

1. State procedural law and federal substantive law govern the disposition of actions brought in state courts pursuant to the provisions of the Federal Employers' Liability Act (Section 51 et seq., Title 45, U.S.Code).

2. In an action predicated on negligence, it is not an abuse of discretion on the part of the trial court to disallow 'examination as if under cross-examination,' as those words are used in Section 2317.52, Revised Code, of an adverse party's employee, absent a showing that the employee played some active part in the alleged negligent conduct of the party for whom he acted. (Section 2317.52, Revised Code, discussed and applied.)

3. In an action brought in a state court under the provisions of the Federal Employers' Liability Act, where plaintiff is seeking damages for injuries sustained in a fall, and where there is proof that could reasonably support a conclusion that the defendant was negligent in failing to provide adequate lighting at the place where the plaintiff was injured and that the defendant was also negligent in allowing coal and other debris to collect in the vicinity where the plaintiff was injured and that the negligence of the defendant contributed to some degree in causing plaintiff's fall, the case is one that should be submitted to the jury for determination. (Rogers v. Missouri Pacific Rd. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 followed.)

This is an action brought pursuant to the provisions of the Federal Employers' Liability Act (Section 51 et seq., Title 45, U.S. Code) by Marion Max Mills, plaintiff, against the New York Central Railroad Company (now The Pennsylvania New York Central Transportation Company), defendant, in the Court of Common Pleas of Hamilton County.

In his petition plaintiff alleges, inter alia, that:

'On March 7, 1963, plaintiff was * * * employed as a railroad brakeman in defendant's crew assigned to operate one of the defendant's freight trains from defendant's Sharon Yard in Hamilton County, Ohio, to Bellefontaine, Ohio. In the course of said employment plaintiff was assisting said crew in moving one of defendant's locomotives from defendant's roundhouse to Sharon Yard where said locomotive was to be coupled to the train. At approximately 6:15 a. m. on said date in darkness said locomotive was backing in a westward direction over defendant's eastbound main track in said yard, and at the inside crossover switch plaintiff in the course of his duties stepped from said moving locomotive in order to line the switch. As he stepped off said locomotive, his foot came onto a lump of coal and he was thereby, caused to twist and fall to the ground, suffering injuries * * *.

'The defendant negligently failed to furnish plaintiff a reasonably safe place to work; negligently failed to maintain the ground and area in the vicinity of said switch in a reasonably safe condition; and negligently failed to furnish adequate lighting in the said working area.'

It is alleged further that the defendant's negligence 'caused or contributed to cause' plaintiff's injuries, and that plaintiff's injuries are both disabling and permanent.

All of the foregoing allegations being denied by defendant in its answer, the cause proceeded to trial before judge and jury on May 16, 1967. Plaintiff's proof consisted entirely of the testimony of himself, three crewmen who were working within him on the morning he was injured, three physicians who treated him subsequent to the time of injury and several exhibits, including the lump of coal upon which plaintiff allegedly stepped.

At the close of plaintiff's evidence, a motion was made by the defendant to withdraw the case from the consideration of the jury, or, alternatively, to direct a verdict in favor of the defendant. This motion was treated by the court as a demurrer to the evidence and sustained. Judgment was entered in favor of defendant.

An appeal on questions of law to the Court of Appeals for Hamilton County resulted in an affirmance, without written opinion, of the judgment below.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Tyler, Richards & Grieser, Robert C. Tyler and Richard Grieser Columbus, for appellant.

Roy W. Short and Edward J. Utz, Cincinnati, for appellee.

MATTHIAS, Judge.

This case must be decided in light of the United States Supreme Court cases interpreting the Federal Employers' Liability Act. Those cases most heavily relied upon by appellant may be summarized as follows:

In Rogers v. Missouri Pacific Rd. Co., 352 U.S. 500, 77 S.Ct. 443, the petitioner was working burning weeds that had grown up beside the railroad tracks. When a train came by, petitioner moved to a position near a culvert to look for hotboxes, as he had been instructed to do by his foreman. The passing train fanned flames from the burning weeds so that they enveloped petitioner causing him to retreat to the top of the culvert from which he fell.

In a subsequent action for injuries, petitioner received a favorable jury verdict in the trial court. The Supreme Court of Missouri reversed, finding as a matter of law that petitioner's injuries were his own fault.

The United States Supreme Court reversed and reinstated the jury verdict, saying, at pages 506 to 509, 77 S.Ct. at pages 448 to 450 in the opinion:

'Under this statute (F.E.L.A.) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. * * *

'The law (F.E.L.A.) was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.

'* * * Originally, judicial administration of the 1908 Act substantially limited the cases in which employees were allowed a jury determination. That was because the courts developed concepts of assumption of risk and of the coverage of the law, which defeated employee claims as a matter of law. Congress corrected this by the 1939 amendments and removed the fetters which hobbled the full play of the basic congressional intention to leave to the factfinding function of the jury the decision of the primary question raised in these cases-whether employer fault played any part in the employee's mishap.

'* * * Some say the Act has shortcomings and would prefer a workman's compensation scheme. The fact that Congress has not seen fit to substitute that scheme cannot relieve this court of its obligation to effectuate the present congressional intention by granting certiorari to correct instances of improper administration of the Act and to prevent its erosion by narrow and niggardly construction. * * *'

In Gallick v. Baltimore and Ohio Rd. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the plaintiff was bitten by an unidentified insect near a stagnant pond located on railroad right of way. The bite became infected. The infection spread throughout plaintiff's body. As a result of the infection, both of plaintiff's legs were amputated.

In an action for injuries, a jury verdict was rendered for plaintiff. Upon appeal, the Court of Appeals reversed (173 N.E.2d 382), reasoning that (at page 388):

'As we view the record before us, we have a chain of possibilities that the negligence of the defendant might have shared in subjecting the plaintiff to damage and injury, but the proof of a legal causal connection between the negligence and the damage falls short of that required for the consideration of a jury.

'Whether the insect causing the damage had any connection with the pool of stagnant water on the defendant's premises, or whether it came from the nearby putrid mouth of the Cuyahoga River, or from weeds, or unsanitary places situated on property not owned or controlled by the railroad, presents only a series of guesses and speculations, which speculations make a chain of causation too tenuous to support a conclusion of liability on the part of the railroad.'

This court dismissed an appeal as of right and overruled a motion to certify the record. (172 Ohio St. 488, 178 N.E.2d 597.)

The United States Supreme Court reversed, saying, at page 113 of 372 U.S., at page 663 of 8o S.Ct. in the opinion:

'* * * The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of respondent.'

In Webb v. Illinois Central Rd. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503, the

petitioner, while working as a brakeman, injured his kneecap in a fall on a cinder roadbed. He slipped on an unnoticed and partially covered cinder 'about the size of his fist' embedded in the level but soft roadbed.

Petitioner sued in the federal District Court and recovered a jury verdict for damages. The federal Court of Appeals reversed, but was, in turn, reversed by the United States Supreme Court.

It was conceded by the railroad that the clinker represented a hazardous condition. The only question remaining was...