Schiller v. Penn Central Transp. Co.

• Citation: 509 F.2d 263
• Decision Date: 21 January 1975
• Docket Number: No. 74--1171,74--1171
• Parties: Robert F. SCHILLER, Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellee, and General Motors Corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 263

509 F.2d 263

Robert F. SCHILLER, Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellee, and General Motors Corporation, Defendant-Appellant.

No. 74--1171.

United States Court of Appeals,

Sixth Circuit.

Jan. 21, 1975.

S. Burns, Weston, Ronald Rispo, Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland Ohio, for General Motors.

Fred Weisman, Weisman, Goldberg & Weisman, John F. Dolan, Thomas R. Skulina, Nicholas M. DeVito, Cleveland, Ohio, for appellee.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

Plaintiff-appellee Schiller was a conductor, employed by Penn Central Transportation Company (Penn Central); he was engaged with a crew in switching freight cars in the sidetrack yard of General Motors Corporation's (G.M.) Schiller filed a complaint against both defendants in the District Court, alleging that his injuries resulted from their joint or concurrent negligent acts or omissions. Schiller's action against Penn Central was brought under the Federal Employers' Liability Act (FELA) 45 U.S.C. § 51 et seq. His claim against G.M. was founded upon common law negligence.

Fisher Body plant in Cleveland, Ohio. He was endeavoring to set a hand brake on a gondola car when he slipped and fell beneath moving freight cars, and both legs were severed below his knees.

The defendants filed answers to the complaint, in which each defendant cross-claimed against the other. The cross-claims were based upon a sidetrack agreement in effect between the parties, which agreement contained the following provision:

Except as herein otherwise specifically provided, in respect of all loss of or damage to property, or in respect of injury to or death of persons caused by or in connection with the construction, operation, maintenance, use, presence or removal of said track (a) the Railroad shall assume responsibility for and hold the Industry harmless from all losses, damages, claims and judgments arising from or growing out of the sole actionable acts or omissions including negligence of the Railroad, its agents or employees; (b) the parties hereto shall equally bear all losses, damages, claims and judgments arising from or growing out of the joint or concurring actionable acts or omissions including negligence of both parties hereto, their respective agents or employees; and (c) the Industry shall assume the responsibility for and save the Railroad harmless from all losses, damages, claims and judgments arising from or growing out of the sole actionable acts or omissions including negligence of the Industry, its agents or employees.

The case was tried before a jury which returned a verdict against both defendants in the amount of $550,000, upon which verdict the Court entered a joint judgment. ¹

The District Court then proceeded to determine the issues involved in the cross-claims on the basis of the evidence offered at the trial. The Court adopted findings of fact in relevant part as follows:

2. The injury occurred while Robert F. Schiller was working in the course of his employment with Penn Central Transportation Company in the Fisher Body Yard occupied and maintained by General Motors Corporation.

3. The injuries received by Robert F. Schiller were proximately caused by the lighting and ground conditions on the premises owned and maintained by General Motors Corporation at its Fisher Body Yard. The failure of General Motors Corporation to light and maintain adequately the premises proximately caused the injuries to Robert F. Schiller.

4. The injuries sustained by Robert F. Schiller were caused by the unsafe condition of the C & O Car 306412.

5. The injuries received by Robert F. Schiller were caused by the failure of Penn Central Transportation Company to give adequate instructions to The Court adopted the following conclusions of law:

Robert F. Schiller in the use of C & O Car 306412. (A. 19--20)

1. The negligence of General Motors Corporation proximately caused the injuries to Robert F. Schiller on the night of October 21, 1969.

2. The negligence of Penn Central Transportation Company caused the injuries to Robert F. Schiller on the night of October 21, 1969.

3. Inasmuch as the joint and concurrent negligence of both General Motors Corporation and Penn Central Transportation Company caused the injuries to Robert F. Schiller on October 21, 1969, General Motors Corporation and Penn Central Transportation Company, under the sidetrack agreement, are required to bear equally the judgment rendered in favor of Robert F. Schiller on January 4, 1973.

JUDGMENT

Accordingly, the Court adjudges that General Motors Corporation and Penn Central Transportation Company shall equally bear the $550,000 judgment rendered in favor of Robert F. Schiller on January 4, 1973.

IT IS SO ORDERED.

/s/ Thomas D. Lambros

United States District Judge

(A. 20--21)

The Court denied G.M.'s motion for judgment notwithstanding the verdict in an opinion and order.

G.M. appealed to this Court from the denial of its motion for judgment notwithstanding the verdict and also from the judgment entered on Penn Central's cross-claim. Penn Central did not appeal.

Subsequent to the entry of judgment but prior to the appeal, Penn Central, acting pursuant to the orders of the United States District Court for the Eastern District of Pennsylvania in the Reorganization proceeding relative to Penn Central, paid one-half of the judgment. During pendency of the appeal Penn Central paid the remaining one-half of the judgment, and it was satisfied. Schiller was then dismissed from the appeal.

I

G.M.'s brief in chief, which was filed in this Court prior to the satisfaction of the judgment, was addressed entirely to the alleged error of the District Court in denying G.M.'s motion for judgment notwithstanding the verdict. The satisfaction of the judgment pending appeal has operated to the benefit of G.M. Because the judgment has been discharged the appeal therefrom under Ohio law has become moot. Both defendants are no longer liable to plaintiff. Levin v. Pribanic, 110 Ohio App. 381, 169 N.E.2d 504 (1959); Cleveland Ry. v. Nickel, 120 Ohio St. 133, 165 N.E. 719 (1929). See also Eberle v. Sinclair Prairie Oil Co., 120 F.2d 746 (10th Cir. 1941); Apple v. Owens, 48 F.2d 807 (5th Cir. 1931).

Despite satisfaction of the judgment in favor of the plaintiff, the appellate issues between Penn Central and G.M. on the cross-claims still remain for our consideration. G.M. has addressed itself to these issues in its reply brief.

II

As previously pointed out, the District Court adopted findings of fact and conclusions of law with respect to the issues in the cross-claims.

Specifically, the Court found that Schiller's injuries were caused by lighting and ground conditions on premises owned and maintained by G.M.; that the failure of G.M. to light and maintain adequately the premises was a proximate cause of Schiller's injuries. The Court also found that Schiller's injuries were caused in part by the unsafe condition of the gondola car, and the failure of Penn Central to give Schiller adequate instructions as to the use of the gondola car.

It is noteworthy that the jury made the same findings of fact.

Our province is to determine whether there is substantial evidence to support the factual findings of the Court and whether its conclusions of law are correct.

The pertinent provision of the side track agreement which we consider is:

(b) (T)he parties hereto shall equally bear all losses, damages, claims and judgments arising from or growing out of the joint or concurring actionable acts or omissions including negligence of both parties hereto, their respective agents or employees;

We are of the opinion that the evidence does not support the proposition contended by G.M. that the negligence of Penn Central was the sole cause of the plaintiff's injuries.

The purpose of the side track agreement was to provide for servicing of G.M.'s plant in Cleveland and on its premises. At the South Yard, which was owned by Penn Central, G.M.'s cars were stored; South Yard was located about three-fourths of a mile from Fisher Body Yard. The switching crew was required to go to the South Yard and move G.M.'s cars to the Fisher Body Yard, as they were ordered by G.M. These cars were moved over the main line of Penn Central, and upon their arrival at the Fisher Body Yard they were switched and placed on Fisher Body Tracks numbers 18, 19, 15, 9, 10 and 4.

The side track agreement required G.M. to maintain at its sole cost and expense the roadbed, crossings, supporting structures, and appurtenances in connection with the track shown in yellow on Joint Exhibit A--1, which included the Fisher Body Yard owned, maintained and controlled solely by G.M.

The side track agreement was not in derogation of common law as was contended by G.M., and should be accorded its plain meaning.

It was stipulated that G.M. knew that it was necessary for the railroad crews to 'go up and down from trains and couple and uncouple trains; . . . uncouple and couple hoses and walk around various areas;' and that G.M. had knowledge of the illumination conditions.

Fisher Body Yard was a busy yard. In addition to the movement of freight cars in and out of the yard, trucks loaded with steel, driven by G.M.'s suppliers, also came in and out of the yard alongside of the tracks; the steel would be unloaded from the trucks, and the trucks would leave with other steel.

There were some oil deposits in various places in the Fisher Body Yard. These deposits were made by G.M. oiling the switches, and the excess oil would run down on the ground. Also, oil would accumulate from Diesel engines, freight cars and trucks. Oil deposits also came from G.M. spraying oil on stored steel. Further, it had rained the night before and the ground was wet in places. Schiller described Switch No. 4, where he was injured as being 'treacherous', and the ground conditions as being 'bad.'

There was...