Pratico v. Portland Terminal Co., 85-1196
| Decision Date | 04 December 1985 |
| Docket Number | No. 85-1196,85-1196 |
| Citation | 783 F.2d 255 |
| Parties | , 12 O.S.H. Cas.(BNA) 1567, 1984-1985 O.S.H.D. ( 27,450 Michael PRATICO, Plaintiff, Appellant, v. PORTLAND TERMINAL COMPANY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Maurice A. Libner with whom McTeague, Higbee, Libner, Reitman, MacAdam & Case, Brunswick, Me., were on brief, for plaintiff, appellant.
Ralph I. Lancaster, Jr. with whom Kevin F. Gordon and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
This appeal raises some novel questions of law concerning the interaction of safety regulations promulgated under the Occupational Health and Safety Act (OSHA), 29 U.S.C. Secs. 651 et seq. (1982), and the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51 et seq. (1982). Plaintiff-appellant, Michael Pratico, brought suit against his employer, Portland Terminal Company, under FELA for damages suffered when he was injured in a railroad yard accident. He claimed below that his injury was caused by the railroad's use of equipment in violation of OSHA regulations and that this constituted negligence per se. He also claimed that under FELA a violation by the employer of a safety statute which leads to an injury eliminates the employer's defense of contributory negligence. 45 U.S.C. Sec. 53. The district court found that there was no relevant OSHA regulation, struck previously admitted testimony concerning the regulation from the record, and refused to give plaintiff's requested jury instruction on negligence and contributory negligence. The court further stated that, even if there had been an OSHA violation, it would have found the requested jury instruction an incorrect statement of the law. The jury returned a verdict for the plaintiff in the amount of $227,000, but found him to have been 80% contributorily negligent; his award was, therefore, reduced to $45,000. Appellant claims that both of the court's rulings were in error and that he is entitled to the full amount of the damages awarded, with prejudgment interest, or, at the very least, a new trial.
The accident which forms the basis for plaintiff's FELA suit took place while he and two other men were involved in a routine maintenance operation called "changing the brasses." Between the journal (axle) and wheels on every railroad car is a device called the journal box containing bronze bearings (brasses), lubrication pads, and oil, all of which have to be periodically inspected and changed. In order to do this the journal box must be lifted several inches off the journal. The first step is to raise one end of the railroad car with a large hydraulic jack so as to take the weight of the car off the journal. Next, any accumulated grease and oil is scraped off the journal box and a jack is placed underneath it to lift the journal box off the journal. Between two and three thousand pounds of force is required to lift a journal box. When the box is lifted, oil from the lubricating pads invariably flows out of the journal box and onto the jack and the immediate work area. A worker then probes inside the raised journal box with a pair of two- or three-foot-long tongs to remove, inspect and replace worn brasses and lubricating pads. The journal box is then lowered back onto the journal. This procedure must be repeated eight times for each car.
The tool ordinarily used by the railroad industry to lift the journal box off the journal is a "journal jack," a small, lightweight mechanical jack which has been in use since the early 1900's. One commonly used model introduced into evidence at the trial required about eight or nine pounds of effort to lift one ton and had a carrying capacity of fifteen tons. The operation of the journal jack is quite similar to that of an ordinary tire jack supplied with automobiles. The body of the jack is placed under the journal box and an operating lever is inserted. The lever is moved up and down until the box is raised to the appropriate height. The presence of a self-locking ratchet in the jack makes it unnecessary for the operator to maintain continuous pressure on the operating lever in order to keep the journal box raised. The journal jack introduced into evidence at trial had a metallic label attached to it which read:
WARNING: DO NOT WHEN OPERATING JACK DO
1. Overload Jack 1. Support the Jack Securely
2. Lift People or Loads over to Prevent Slipping Out
People from Under Load
3. Operate Damaged or 2. Follow the Load with
Malfunctioning Jack Cribbing or Blocking
4. Use Levers Longer Than 3. Read the Manufacturer's
Specified Instructions and ANSIB
5. Apply Off Center Loads 30.1 Safety Code for Jacks
6. Alter Original Equipment
7. Remove or Obscure This
Label
While the Portland Terminal Company did own journal jacks, it also used another device for lifting the journal box which was manufactured by it especially for this purpose. It was a lever and fulcrum device consisting of a bent metal pipe about ten and one-half feet long and a metal fulcrum with a flat metal baseplate placed approximately six to ten inches from the lifting end. Expert testimony estimated that this device provided a ten to one mechanical advantage, meaning that 200 pounds of force would be necessary to raise one ton. A small metal rod was welded over one of the bends in the pipe for strength and reached from about the four-foot mark across the fulcrum to the short, lifting end of the lever. A short horizontal rod was welded to the lifting end of the pipe forming a "T" that cradled the journal box.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
In order to change the brasses, the short T end of the lever was inserted under the journal box, one or two workers would push down on the long end of the lever with the weight of their bodies and while the journal box was raised another worker would pull out the brasses. The pushers would frequently straddle the lever to hold it down while their partner was probing in the journal box for the brasses, a period of thirty to forty seconds. Testimony indicated that no one was ever told not to straddle the lever while it was engaged with the journal box. There was also testimony to the effect that the journal box was never cribbed, blocked, or supported by anything other than the lever while it was in the raised position. Once the brasses were removed, weight would be taken off the lever, and the journal box lowered while the brasses were inspected. When it came time to replace the brasses, the T was once again engaged, the journal box raised, the brasses inserted and then the journal box lowered to its original position.
At the time of the accident, the plaintiff and a fellow worker were engaged in using this lever device to change the brasses. The two of them tried to lift the journal box by pushing down on the lever, but were unable to do so. They enlisted the help of another and heavier worker. Plaintiff's partner, who was the smallest of the three, switched to the job of pulling out the brasses. Plaintiff and the third person succeeded in raising the journal box. Plaintiff then straddled and sat on the end of the lever while his partner was probing in the journal box. No blocking or cribbing was used to support the raised journal box; it was kept raised solely by the weight of the plaintiff on the lever. While plaintiff was straddling the lever, the raised journal box unexpectedly came down, forcing the pushing end of the lever up and catapulting plaintiff into the air. He landed across the lever on his lower back and is now permanently disabled.
We first consider the district court's ruling that the OSHA safety regulations pertaining to jacks, 29 C.F.R. Secs. 1910.241(d)(1) & 1910.244(a), were not applicable to the lever device used by the plaintiff at the time of the accident. The OSHA regulations pertaining to jacks are as follows:
Sec. 1910.241 Definitions.
....
(d) Jack terms --(1) Jack. A jack is an appliance for lifting and lowering or moving horizontally a load by application of a pushing force.
Note: Jacks may be of the following types: Lever and ratchet, screw and hydraulic.
(2) Rating. The rating of a jack is the maximum working load for which it is designed to lift safely that load throughout its specified amount of travel.
Note: To raise the rated load of a jack, the point of application of the load, the applied force, and the length of lever arm should be those designated by the manufacturer for the particular jack considered.
....
Sec. 1910.244. Other portable tools and equipment.
(a) Jacks --(1) Loading and marking.
(i) The operator shall make sure that the jack used has a rating sufficient to lift and sustain the load.
(ii) The rated load shall be legibly and permanently marked in a prominent location on the jack by casting, stamping, or other suitable means.
(2) Operation and maintenance.
(i) In the absence of a firm foundation, the base of the jack shall be blocked. If there is a possibility of slippage of the cap, a block shall be placed in between the cap and the load.
(ii) The operator shall watch the stop indicator, which shall be kept clean, in order to determine the limit of travel. The indicated limit shall not be overrun.
(iii) After the load has been raised, it shall be cribbed, blocked, or otherwise secured at once.
(iv) Hydraulic jacks exposed to freezing temperatures shall be supplied with an adequate antifreeze liquid.
(v) All jacks shall be properly lubricated at regular intervals.
(vi) Each jack shall be thoroughly inspected at times which depend upon the service conditions. Inspections shall be not less frequent than the following:
(a) For constant or intermittent use at one locality, once every 6 months,
(b) For jacks...
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