Shiffler v. Pennsylvania R. Co.

• Decision Date: 07 January 1949
• Docket Number: No. 9606.,9606.
• Citation: 176 F.2d 368
• Parties: SHIFFLER v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

176 F.2d 368 (1949)

SHIFFLER v. PENNSYLVANIA R. CO.

No. 9606.

United States Court of Appeals Third Circuit.

Argued November 3, 1948.

Decided January 7, 1949.

Elias Magil, Philadelphia, Pa., for appellant.

Philip Price, Philadelphia, Pa., for appellee.

Before BIGGS, Chief Judge and McLAUGHLIN and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

The plaintiff, Shiffler, brought his action in the court below under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. He was employed as a pipe fitter at the shops of Pennsylvania Railroad Co., the defendant, at Altoona, Pennsylvania. He claims that he was injured while going through the yard toward the building on the defendant's premises in which he was accustomed to work. The court below directed a verdict for the defendant and Shiffler has appealed.

In view of the directed verdict we take the evidence and the inferences to be drawn therefrom most favorable to the plaintiff. Shiffler testified that he entered the defendant's yard about 6:40 A. M. on the morning of March 8, 1944 and was walking southward on a concrete roadway which led across railroad tracks and into the defendant's shops; that when he was about 30 to 40 feet inside the yard gate and was crossing the metal plates employed to make a solid crossing over the tracks he suddenly noticed a truck ahead of him; that this truck had been headed west on a driveway running east and west behind the crossing and had turned sharply to the north just in front of him, and that, after making the right turn, the truck passed within two feet of him, crossing the western edge of the metal plate while he was standing on the plate's eastern edge. The plaintiff stated that the truck's weight caused his edge of the plate to rise about four inches in the air and that when the weight was released after the truck had passed, the plate dropped causing him to fall and to injure himself. He admitted that he did not see the truck until it was very close to him and that he made no attempt to get out of its way. It is undisputed that there was some snow and ice on the ground including the area of the plates.

A witness for the defendant, Latherow, testified that he was employed by the defendant as a foreman of carpenters, bricklayers and masons, and that he was charged with the duty of maintaining and repairing the twenty-three metal plates in the crossing; that he had examined the plates in 1946, about two years after the accident, the crossing then being, according to his testimony, in the same condition as it was when the accident occurred. He stated that the plates had been put into place more than thirteen years before; that there had been no periodical routine inspection of them. He testified: "I can't remember when the repairs were made to that crossing." He stated also that he had found several plates to be loose or wobbly, one with a "wobble" or "teeter" of an inch and a quarter but that the rest of them had less than a half inch wobble. In his opinion, none of the plates required repair. The witness said that he had...