Zegan v. Central Railroad Company of New Jersey

• Decision Date: 31 March 1959
• Docket Number: No. 12697.,12697.
• Citation: 266 F.2d 101
• Parties: Peter J. ZEGAN, Appellant v. CENTRAL RAILROAD COMPANY OF NEW JERSEY.
• Court: U.S. Court of Appeals — Third Circuit

266 F.2d 101 (1959)

Peter J. ZEGAN, Appellant v. CENTRAL RAILROAD COMPANY OF NEW JERSEY.

No. 12697.

United States Court of Appeals Third Circuit.

Argued December 16, 1958.

Decided March 31, 1959.

Milford J. Meyer, Philadelphia, Pa. (Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., on the brief), for appellant.

Richard P. Brown, Jr., Philadelphia, Pa. (Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for appellee.

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

HASTIE, Circuit Judge.

This is a suit for negligent injury under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. After a jury, answering special interrogatories, found the defendant negligent, assessed the plaintiff's damages at $70,000, and found half of this attributable to plaintiff's contributory negligence, the District Court entered a judgment for $35,000. Thereafter, on defendant's motions under Rule 50(b), F.R.Civ.P. 28 U.S.C.A. for entry of judgment in accordance with its earlier motion for a directed verdict and, in the alternative, for a new trial, the court set aside the judgment and entered judgment for the defendant. It also ruled that the alternative motion for a new trial was well taken and should be granted in the event the judgment for defendant should be reversed on appeal. D.C.E.D.Pa.1958, 164 F.Supp. 347. This appeal followed.

In reviewing the judgment thus entered, notwithstanding the verdict, we must examine the proof in the light most favorable to the prevailing party, resolving all conflicts of testimony in his favor, to determine whether the evidence was sufficient to carry the case to the jury.

Appellant Zegan worked as a car repairman at the Elizabethport shop of appellee. On the afternoon of the alleged mishap he was directed, with the assistance of another workman, to rivet an end-step to the bottom of a baggage car. The step, used by brakemen in switching operations, is a U-shaped frame which is attached to the bottom of the car so that the base of the U forms the step. One of the required rivets fastens the step to an angle brace, the other end of which is attached to the underside of the car.

The car in question had previously been brought into the shop, raised from its trucks, and placed on benches for repair work. At the conclusion of this work it had been lowered again to its trucks. It was then noticed that the end-step had not been attached and appellant was instructed to rivet the step to the car.

When the car stood on its trucks its end still was forty-four inches above the ground. However, it had been some ten inches higher while elevated on benches for repair work.

In order to rivet the step to the angle brace, appellant had to get down low enough to look up at the rivet while applying a twenty-five pound rivet gun and exerting forced upward toward the underside of the step. During the period of about a minute during which appellant was crouching, resting almost on one heel, with the other leg extended and with his body bent low and so twisted that he could look up at the rivet he was driving, he felt a pain in his back.

Later, his condition was diagnosed as a protrusion of an intervertebral disc which caused muscular contracture and nerve irritation and left scar tissue after the disc receded. This condition incapacitated appellant from performing the normal tasks of his job classification, although he could still do lighter work.

One of the items of negligence charged against the railroad is unreasonably subjecting the plaintiff to the additional hazards involved in performing the job in question while the car was down on its trucks instead of up on benches. The appellant's back injury is said to have been caused, in part at least, by this extraordinarily unfavorable position of the structure on which he was required to work.

The trial court held that there was no evidence that the alleged negligence of the railroad was a cause of the injury. However, on the present record we think it was a permissible inference that appellant injured his back by bending very low from an already deeply crouched position, twisting his body in order to look up and then exerting strong pressure against the rivet gun. It is also rationally inferable that the difference between the position required to rivet under a car forty-four inches above ground and that required when the same structure was ten inches higher subjected the workman to an additional strain which was a significant factor in causing the injury. We must be mindful that "under this statute F.E.L.A. the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. In this connection there was medical testimony that a "rotary flexion motion", such as was indicated by appellant's description of his manner of performing this job, is the "greatest mechanism for producing back pain". We think it was within the province of the jury to conclude that this potentially injurious "rotary flexion motion" was substantially exaggerated by the exigency of working in a very confined space with ten inches less head room than normal.

It is true that there was evidence indicating that appellant might have assumed a less awkward position. Indeed, the not unreasonable finding of contributory negligence indicates that the jury credited this evidence. But at the same time the jury apparently found, as it properly might, that appellant did in fact assume a specially awkward and strained position in an ill-judged effort to accommodate himself to the decreased working space which resulted from lowering the car onto its trucks.

The foregoing analysis of the issue of causation does not dispose of the case in its entirety, because it is still necessary to consider a question which was urged as a ground of judgment n.o.v. but was not ruled upon by the trial court. That question is whether the evidence justified a finding that it was negligent to have the riveting done while the car was down upon its trucks. It is, of course, proper for us to pass upon that question without a ruling by the district court upon it since "a successful party in the District Court may sustain its judgment on any ground that finds support in the record". Jaffke v. Dunham, 1957, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314.

The question on the issue of negligence is whether the jury had an adequate basis for concluding that the railroad created an unreasonable risk of harm to workmen by postponing the riveting of the end-step until the car had been returned to its trucks, rather than having this work done while the car was elevated on benches. At the outset it deserves mention that the record contains no suggestion of any good reason for not having the job done while the car was in a higher position. Indeed, asked about the instructions given him by the foreman on the afternoon of the accident, appellant testified as follows: "Well, he told me to go do the riveting in that baggage car. The step wasn't riveted. They forgot to rivet the step, and go rivet that step because, the car is going to be taken out of the shop". Thus, the jury had basis for concluding that it was solely through inattention and oversight that the step had not been riveted while the car was elevated.

Next, the workman who normally did the riveting in the shop testified that work of the sort involved in this case was normally done with a car elevated on benches. Only "rarely" or "in an emergency" was it done while a car stood on its trucks. While the district court analyzed the testimony as a whole as tending to show that performance of such work while a car remained on its trucks was not as rare as this witness indicated, the jury may well have been convinced that the quoted testimony was entirely accurate. In this connection there also was testimony that with the car elevated "it would be more convenient for him to get at that rivet and both men (riveter and assistant) would be safe."

Finally, during their deliberations the jurors were free to compare for themselves the working space provided by fifty-four inches of headroom with that provided by forty-four inches and thus obtain significant guidance in judging whether any unreasonable risk of harm would seem to be imposed upon workmen by a requirement that this type of work be done in the more confined space.

In these circumstances we think there was a question on the evidence, appropriate for jury decision, whether in the circumstances of this case the railroad exhibited a lack of due care in postponing the riveting operation and requiring it to be performed after the car had been returned to its trucks.

The Supreme Court has gone very far in restricting the exercise of judicial power to enter judgment contrary to verdicts in favor of injured workmen in F.E.L.A. cases where evidence of negligence or causation has been minimal. E.g. Stinson v. Atlantic Coast Line R. Co., 1957, 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93; McBride v. Toledo Terminal R. Co., 1957, 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Ringhiser v. Chesapeake & Ohio Ry. Co., 1957, 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668; Rogers v. Missouri Pacific R. Co., supra. We have indicated that notwithstanding these rulings there still remain F.E.L.A. cases where the entry of judgment notwithstanding the verdict is justified. Dessi v. Pennsylvania R. Co., 3 Cir., 1958, 251 F.2d 149; Gill v. Pennsylvania R. Co., 3 Cir., 1953, 201 F.2d 718. But in those cases we found no rational basis for the verdicts. For the reasons above indicated, Chief Judge BIGGS and I think this is not such a case. Accordingly, the present judgment contrary to the verdict...