Norton v. Railway Express Agency, Inc.
| Decision Date | 09 July 1969 |
| Docket Number | No. 17715.,17715. |
| Parties | Jacob NORTON, Appellant, v. RAILWAY EXPRESS AGENCY, INC. |
| Court | U.S. Court of Appeals — Third Circuit |
Leonard E. Price, Price, Bercik & Kernan, Oakdale, Pa. (Herbert J. Johnson, Jr., Evans, Johnson, Scarpitti, Bernard & Wittmann, Erie, Pa., on the brief), for appellant.
John A. Spaeder, Marsh, Spaeder, Baur, Spaeder & Schaaf, Erie, Pa., for appellee.
Before FREEDMAN, SEITZ and ALDISERT, Circuit Judges.
This is a tort action sounding in negligence which is in the federal courts solely because of the diversity of citizenship of the litigants. It requires us to consider the familiar doctrines of reasonable care and respondent superior as interpreted by the courts of Pennsylvania. The facts are not complicated.
The plaintiff-appellant worked as a handyman for a supper club in Erie, Pennsylvania. In response to a club order for food, the defendant-appellee Railway Express delivered a 226 pound barrel of meat to the premises. On arrival, the defendant's deliveryman was requested by the appellant to unload the cargo by way of a stairway leading to the cellar. It was decided that the barrel would be placed on a wheeled dolly or truck and lowered step by step to the delivery point in the cellar.
The appellant positioned himself on the steps and held the bottom of the barrel; the deliveryman held the top. Step by step the barrel was eased down the stairs toward the cellar. Something then occurred, described with exquisite imprecision by the participants1 and culminating in the barrel's unscheduled rapid descent to a resting place on top of the plaintiff.
In support of his personal injuries claim against the defendant-employer, the plaintiff proffered the testimony of an expert witness on the subject of the methods customarily employed in the delivery of barreled cargo. The district court rejected the relevancy of this offer, and at the close of testimony, directed a verdict for the defendant on the alternative grounds that no negligence had been established or that the plaintiff had been contributorily negligent as a matter of law.
We might have agreed with the result reached by the court below had the sole question of negligence been limited to the conduct of the participants in the unloading episode. Considered from this constricted viewpoint, the result could have been justified on the ground that the plaintiff failed to delineate any particular act amounting to a breach of care on the defendant's part. Present and germane to this case, however, was a broader concept of negligence: the method chosen to lower the barrel, as distinguished from the role the participants played in the misadventure, may have been a breach of the ordinary care owed by the defendant to its customers. Inherent in the grant of the directed verdict was the unwarranted assumption that the choice of the method of delivery did not in itself present a separate and distinct issue of negligence. With proper supervision and instructions from the trial judge, it would be appropriate for the jury to consider whether the method used was itself a breach of care and the proximate cause of the injuries to the plaintiff.2
In this respect, the proffered testimony of the customary manner of delivering barreled cargo would be relevant. Although not controlling, custom and practice may be shown to establish the standard of care to which the party charged with the wrongful act may be required to conform. Accepted with the limitation that such evidence is only an indication of reasonable conduct, and mindful of Mr. Justice Holmes' admonition that "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard or ordinary prudence, whether it is complied with or not,"3 testimony on the customarily accepted method of lowering barrels of this size and bulk could have been received in evidence. Upon retrial, with a proper offer on the particularities of the testimony and with due consideration for the degree of...
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Anderson v. Deluxe Homes of Pa, Inc.
...facts are undisputed, the jury determines questions of agency." Glickstein, 1999 WL 58578, at *13. See also Norton v. Railway Express Agency, Inc., 412 F.2d 112, 114 (3d Cir.1969) ("There is no question that under the law of Pennsylvania, the scope of the authority or employment of an agent......
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United States v. Citgo Asphalt Ref. Co. (In re Petition of Frescati Shipping Co.)
...or lack of negligence.” In re J.E. Brenneman Co., 322 F.2d 846, 855 (3d Cir.1963) (citations omitted); Norton v. Ry. Express Agency, Inc., 412 F.2d 112, 114 (3d Cir.1969) (“Although not controlling, custom and practice may be shown to establish the standard of care to which the party charge......
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Phillips v. Northwest Regional Communications, Civil Action No. 05-1502.
...No. 05-0963, 2006 WL 3762031, *2, n. 9, 2006 U.S. Dist. LEXIS 91955, *9, n. 9 (M.D.Pa. Dec. 20, 2006), citing Norton v. Ry. Express Agency, Inc., 412 F.2d 112, 114 (3d Cir.1969). However, if "no reasonable inference from the facts supports the finding that the employee was acting in further......
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Hollinghead v. City of York
...performed to further the business of the employer and not for the servant's personal purposes. Norton v. Railway Express Agency, Inc., 412 F.2d 112, 114 (3d Cir.169); [912 F.Supp.2d 227]Mauk v. Wright, 367 F.Supp. 961, 965–66 (M.D.Pa.1973). The existence of a master-servant relationship and......