Wilbert v. Pittsburgh Consolidation Coal Co.

• Decision Date: 16 April 1956
• Citation: 385 Pa. 149,122 A.2d 406
• Parties: Charles Harry WILBERT v. PITTSBURGH CONSOLIDATION COAL COMPANY, a corporation, Appellant.
• Court: Pennsylvania Supreme Court

Page 406

122 A.2d 406

385 Pa. 149

Charles Harry WILBERT v. PITTSBURGH CONSOLIDATION COAL COMPANY, a corporation, Appellant.

Supreme Court of Pennsylvania.

April 16, 1956.

Rehearing Denied May 22, 1956.

Harold R. Schmidt, John L. Laubach, Jr., Rose, Rose & Houston, Pittsburgh, for appellant.

Earl J. Cavanaugh, Evans, Ivory & Evans, Pittsburgh, for appellee.

Before STERN, C. J., and JONES, MUSMANNO and ARNOLD, JJ.

JONES, Justice.

The plaintiff, an employee of the Pennsylvania Railroad Company, was injured while in the course of his employment by being thrown from the platform of a caboose upon which he was riding. The accident happened as the result of the derailment and overturning of the caboose at a point where the defendant coal company's private road crossed the railroad track upon which the caboose was being backed by a shifting locomotive at the time of the derailment.

A short time after the accident the plaintiff received from the railroad company $12,500 for which he executed a release relieving the railroad from 'a liability claimed and denied'. Subsequently the plaintiff instituted the instant action against the coal company to recover damages for his injury on the ground that negligence on the part of the coal company in causing the private crossing to become slag-littered was the proximate cause of the derailment and the plaintiff's consequent injury.

As the release was executed and delivered prior to the effective date of the Uniform Contribution Among Joint Tortfeasors Act of July 19, 1951, P.L. 1130 12 P.S. §§ 2082-2089, the common-law rule that a release of one joint tortfeasor is a release of all would have been applicable. See Thompson v. Fox, 326 Pa. 209, 212-213, 192 A. 107, 112 A.L.R. 550, and cases there cited. However, in order that a release of one person from liability may bar an action against another for the same injury, the two must have been jointly liable Accordingly, a release of one who is not legally liable for an injury to another does not operate to release the culpable tortfeasor. In Koller v. Pennsylvania Railroad Company, 351 Pa. 60, 63, 40 A.2d 89, 90, it was there recognized that 'before there can be a joint tort, there must be a community of fault which occasioned the accident.' See, also, Union of Russian Societies of St. Michael & St. George v. Koss, 348 Pa. 574, 578, 36 A.2d 433.

Ordinarily, one who asserts an affirmative defense has the burden of proving it, but, where the defense is a release from liability for the injury in suit, given to one not a party to the record who is alleged by the impleaded defendant to have been jointly liable with him, the release, when introduced in evidence, makes out a prima facie case of joint liability, and thus the burden of showing that the defendant in the action was solely liable shifts to the plaintiff. Smith v. Roydhouse, Arey & Co., 244 Pa. 474, 479, 90 A. 919; Peterson v. Wiggins, 230 Pa. 631, 634-635, 79 A. 767.

In the instant case, three issues were litigated in the court below, viz., (1) was the railroad guilty of negligence in relation to the plaintiff's injury, (2) was the coal company guilty of negligence and (3) if so, was its negligence the proximate cause of the plaintiff's injury. The case was tried and submitted to the jury with the controlling effect of the above stated legal principles clearly in mind. Not only did the learned trial judge fully and correctly instruct the jury on the applicable law but defendant's counsel submitted direct and pertinent cognate points for instruction which the trial judge affirmed and read to the jury, expressly pronouncing them to be correct statements of the law. The only one of the defendant's points which the trial judge refused was the one for a directed verdict. Nor did defendant's counsel take any exception to the court's charge save for one presently immaterial matter. The jury returned a verdict in favor of the plaintiff for $10,000. The defendant filed motions for judgment n. o. v. and a new trial, both of which the court en banc refused; and the judgment from which the defendant took this appeal was entered on the verdict. The appellant assigns for error the lower court's refusal of the motions for judgment n. o. v. and new trial.

In support of its motion for judgment n. o. v., the appellant contends (1) that the plaintiff's evidence was insufficient to overcome the presumption of joint liability on the part of the railroad company which the release from the plaintiff imputed and which automatically served to bar an action against the coal company and (2) that the plaintiff failed to prove negligence on the part of the defendant which was the proximate cause of the plaintiff's injury.

To rebut the prima facie case of the railroad's joint liability, the plaintiff offered testimony to show that within the two-week period immediately preceding the accident the railroad's section foreman had twice inspected the private crossing and the track which was seldom used and which led to a mine opening of the coal company; that on the first of these occasions the foreman noted that the coal company had placed slag on its private road including that part which crossed the railroad's track; that the foreman ordered his men to clear the crossing which was done; that he informed the coal company's superintendent that slag should not be placed on the road within the railroad's right of way; that it might cause a derailment; that he inspected the crossing again about a week prior to the accident and while he found it still clear, he noted that slag had moved a little way into the right of way; that the slag was similar in color to the rails so that, when near the rails, it was not readily discernible to one on a moving train; that at the time of the accident the locomotive was moving slowly; that after the derailment of the caboose the locomotive and tender came to a stop with the tender clear of the crossing and the locomotive half off it; and that just after the accident the foreman found that the slag had been piled on the track at a level above the rails and that the path of the derailed caboose led from the center of the crossing through the slag to the rocky ground at the side of the track. No mechanical defects about the caboose were observed prior to the accident, and an inspection of the scene disclosed no material on the crossing other than the slag.

Taking the facts and the reasonable inferences therefrom in the light most favorable to the verdict as we are necessarily required to do at this stage of the proceeding, the jury was warranted in finding that the accident was not due to any negligence on the part of the railroad company. And, to be liable, the railroad would have had to be negligent. Such is the requirement of the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51. In Ellis v. Union Pacific Railroad Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572, the Supreme Court said, 'The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury.' As...