*1
McLAUCHLIN,
Before
KALODNER
STALEY,
Judges.
Circuit
STALEY,
Judge.
Circuit
Foster sued the
Frank G.
Company
under the Federal Em-
Liability
ployers’
damages
Act1 for
for in-
engaged
while
juries sustained
his duties
shifting
during
opera-
brakeman
as head
property
tions
Crown Can
Philadelphia.
Company
Crown Can
brought
as
third-party
special verdict,
By
defendant.
and Crown
negligent and
Foster was
were
not.
(1939),
seq. (1943).
amended,
(1908),
§
et
45 U.S.C.A. 51
Stat. 65
53 Stat.
1. 35
*2
that Crown?
post-'
jury
corrected. The
told
was
disposition of various
Following the
only
held
for the
Can could be
liable
amount of
motions,
in the
judgment
trial
“six-foot,” and,,
presence
in
of cans
the
Foster
in favor of
$70,000 was entered
something
then, only if it 'had done
the even
railroad,
in
and
favor
the
against
ordinary
the
and had allowed an
for one-half
Can
railroad
Crown
from what
of cans
appeals fol- accumulation
different
3These
judgment.2
Foster’s
usually
which
railroad
appellant in was
there and of
lowed,
being
knowledge. Crown Can contends
in had no
10,774
appealing
Can
and Crown
No.
presence
no evidence
us that there was
that
have
10,777.®
appellant would
Each
No.
any
cans
the area of the accident was
in
liability
We
the other.
the entire
shift
always was.
different then from what it
bear one-half.
that each should
think
says
believed
that the
could have
27, 1947, the
August
night of
On the
area
evidence and found that the
Foster’s
working was
was
in
Foster
crew
debris,
always littered
or it could
boxcars
loaded
engaged
shifting
in
and
have believed Crown
evidence
Can’s
yard to the Penn-
Can
F
in the Crown
track
policed religiously
found that the area was
E
yard.
F and
sylvania
Between
always
clean,
reasonably
that
and
it was
sepa-
tracks,
six-foot
there was the usual
justified
find-
but in no event
in
would it
ration,
areaway there were steel
and in that
ing (as
have)
must
there was more
con-
supported overhead
girders which
night
debris there on the
of the accident
brakeman,
veyors.
Foster was
As head
usually
than there
was.
It is said that the
yard
required
of the Crown Can
ride out
point
rejected
all the evidence on this
attempting to
While
on the draft of cars.
compromise theory of its
and substituted a
boxcar, he
moving
mount the side of
true,
special
own. If
that would vitiate the
slipped
and
and was
stepped on
tin can
story
finding
-Crown Can. Foster’s
pull 'himself in
to the
unable to
close
thus
always
area
was that the
littered with
coming in contact
before
side of
car
story
cans and other debris. Crown Can’s
him
knocked
girders
with one of
was that the
debris there consisted
car,
injuries.
causing his
off the
during loading
which fell
ground
cans
to the
shall treat first Crown Can’s
We
operations and that
regularly
these were
that no view of the evidence
assertion
picked up during
after
the shifts.
instructions,
squared
trial court’s
with the
think,
These are extreme views. We
how-
being
The conflict
in its
and result
liable.
ever,
justified
would have been
testimony
issues of
ing
raised factual
rejecting
possibly exaggerated
Foster’s
possible
part of the rail
negligence on the
concluding
version
while Crown
inadequate lighting, close clear
as to
road
usually
job,
did an
policing
Can
effective
girders
ances caused
pick up all
it had failed to
the cans on the
“six-foot,”
the track
unevenness
night of the accident.
would be the
produce
swaying
motion of
which would
“difference,” required by the court’s in-
moving
and would further reduce
cars
If, as Crown Can’s
wit-
structions.
own
clearance,
pres
already
and the
close
stated,
practice
pick
nesses
the usual
was to
and other debris in the
ence of tin cans
cans,
up
ordinarily
all
fallen
area would
charged
“six-foot.” The court
that Crown
hand,
be clean. On
other
that Foster
-
per
Can could not be held for
can was
on a
uncontradicted.
conditions,
is,
manent
Also,
testimony
no
there was
there
clearance,
lighting, close
or the uneven
no
the scene when the
were
cans at
track, because the railroad had full knowl
employees
Can
testified
occurred. Crown
edge of these conditions and could have
ground during
they
that cans did fall on the
refused to serve Crown Can until
were
rights
D.C.E.D.Pa.1952,
prejudice
possible
reported
to its
2. The
without
Thus,
F.Supp.
is-
Crown Can.
491.'
rights
are the
and liabilities of
sues here
the railroad
$10,750,
After a remittitur of
Foster’s
inter se.
satisfied
argument
appeals,
before
these
Having
could
Wilson,
concluded that Crown Can
Furthermore,
one
loading.
n Can’s
properly be
of Foster’s
foreman,
some
at the
held
testified that
recovery, we turn to the railroad’s conten-
peak
happened, it was the
'time the accident
n
solely liable.
tion that Crown Can is
jury,
can-shipping
season.
*3
thus,
that
clean
could have reasoned
a
area
accident,
At
time of
there was
the
the
situation,
rail-
usual
of
the
was the
effect between
and Crown Can
the railroad
night
cognizant,
that on the
road was
but
a siding agreement containing the follow-
n of
Crown Can had allowed
ing paragraph:
ground
(cid:127)cans to remain on
and that this
“8.
It is understood that the move-
relatively
was not
transitory
situation
railway
ment of
locomotives involves
think,
by
there-
"known
the railroad. We
fire,
Industry
some risk
and the
as-
of
fore,
special
finding
that
Crown
responsibility
agrees
sumes all
for and
n Canwas
amply justified.
indemnify
Company
to
the Railroad
argues
Pennsylvania
Crown Can
also that
damage
property
loss
to
of
or
requires
"law
that
it be absolved since in
Industry
property upon
or to
its
premises
that state an owner of
is not liable
premises, regardless of Railroad Com-
employee
injured
to an
of another who is
pany negligence; arising from fire
n thereon
by
dangerous
condition which is
by
operated
caused
by
locomotives
employee
employer.
known to the
or his
Company
track,
said side
Reider, 1951,
Engle
411,
v.
366 Pa.
77 A.2d
vicinity,
purpose
or in its
for the
of
621;
Peoples-Pittsburgh
Valles v.
Trust
serving
Industry, except
said
to the
Co., 1940,
33,
339 Pa.
responsible, negligence ficient by way indemnity. to establish its in that But, required respect. told, are is contends that a like result is we this is, Pennsylvania law, siding secondary negligence, passive neg- even without ligence agreement. failing to remove the can which Crown Can contends one- had fallen and to remain ho for more than there event it liable allowed active, primary because by way negligence recovery, half of Foster’s contribution, Consequently, argument Crown Can. since the last clause *4 concludes, indemnity-clause paragraph controlling siding agreement 8 is of railroad, too, agreement play, comes into guilty because the pay must of both bill. negligence. arguments active The whole appellants upon jury’s in- are based argument places That undue reli which, say, they articulate conclusions it ance on effect of Foster’s statement reached, must have in view the court’s that, can, but for the he have mounted could express charge, in order to arrive at the safely most, and ridden past girder. At negligence. findings of opinion the statement was his to what said, jury As we have must have happened. might say have We do not that the debris condition was differ- found it by jury should not be considered ent on the of the accident from what simply by because it is labelled the vitu ordinarily it was and that the railroad was perative epithet, not, “opinion.”5 is ignorant unusual of that condition. however, causation; conclusive as to that, means the railroad as between and jury And, could believe it or not. as we Can, the former could not be liable case, jury view the not. There is did presence because of the of the can. With . ample evidence from which the could premise, that as a argues the railroad neg have concluded that the railroad was that, Can, as between and Crown it could it ligent inadequate because of the lighting. following not be liable at all since testi- Mounting the moving side of a car is an in mony Foster, cross-examination, on stantaneous, integrated action in which shows, law, presence as a matter that the opportunity there is no to look at the side only of the can was the cause of the ac- grabirons, of the car for look ahead for cident : clearances, pos close and look down for pitfalls, By sible all at the same time. “Q. you And hadn’t on saying could have found that can, anything prevent was there negligent the railroad was because of in you from getting riding on the car and adequate lighting we do not mean safely? No, A. sir.” having once himself committed to mount The railroad asserts that this shows that spot ing cans, a littered from Foster conditions, clearance, lighting close stepping could have avoided on a can had and uneven track were not causal factors adequate. been lighting jury very The conditions; Therefore, but since the reasoned that, light well could have had the sole pres- cause of accident was the sufficient, he ing picked been would have since, ap- ence of the can and as between spot free cans -from to board the pellants, the railroad could not be liable steps car, brought would not so have his cause, argues for that that there was on the can. him down The case is one nothing upon predicate left which to a find- concurring negligence parties which both negligence ing its except a agree covered the last is clause of 7 Wigmore, present case, objection See Evidence 1951 and §§ In no rule. (3d 1940), general 1976 ed. where the rule made to the admission of Foster’s excluding testimony, is stated as opinion. such fol- scathing . lowed attack railroad had paragraph siding agreement, been notified of that situation then, contribution, indemnity.6 court, calls for not instructed the “the railroad company negli- cannot hold the can for any heavily on railroad relies ** gence Since both the can com- Pacif Lumber Co. v. Southern pany and the railroad were negligent Co.,. Cir., 1950, ic 20 A.L.R. it follows that the decided that the substantially 2d identical which a company respect was at fault with siding agreement clause of was construed the condition of the accident area and that require indemnity so as to the railroad. the railroad was to blame because of the however, inapposite, That because out, lay track uneven roadbed or primarily company there the lumber lighting. verdict, under the circum- secondarily negligent, so. the railroad stances, of necessity absolves the railroad will of the District Court arising blame from the be affirmed. pieces of cans ground. of tin on the McLAUGHLIN, Judge (dissent- Circuit Foster, in testifying that the sole cause ing)- of his stepping slip- hurts was his on and *5 solely by plain- ping can,
This accident caused giving opinion was was not his That him slipping happened. tiff on a tin caused can. what He detailing was prevented to lose him from simple his balance and fact. The was not bound to ascent ladder to the finishing his of the car not, believe him but if it had and its verdict safety of him- car. Plaintiff did, side of indicates that it there was no other any question self proof eliminated of close clear- proximate negli- record of the track, ance, unevenness of the or gence of either defendant. Foster’s testi- if he had not lighting. He testified that mony was the evidence of what had nothing on the can there was to caused him to Assuming fall. it could be prevent climbing on car him from generally inferred that the lighting in- was riding safely. He said that he knew adequate, the roadbed uneven or the clear- where he cans were the area was close, ance too there is no evidence that them; injured and that he saw one all or of those conditions slight- had the “ * ** amount of there was a certain est direct relation to Foster’s fall. appendix excerpts glare them.” The appeal should be decided on the comprise testimony forty-eight from his facts below, established at the trial not on pages. the direct and redi- Under all of conjecture possibilities concerning which and cross and recross-ex- rect examination were never tied into the at all. defendants, the net by the two amination complete immediate reason for Foster’s plaintiffs story is as above out- result of injury slipping was the on the can. The lined. concluded that the of the can charge negli- From the court’s proximate negligence amounted to by the gence to the can could be attributed company. concedes, can latter as of premises. company condition of was the “ * ** must, course it it however, premises If, condition of the exclusively solely negligent”, negligence, but the alone be plaintiff’s testimony damages. to the effect that the is liable believed The rec- agree in its under with the District Court contribution the Act of 1939. Act 6. We 1939, that, having 24, 1075, 1, entered into a June P.L. Purdon’s § 12 conclusion rights matter, (1951). Pa. Stat.Ann. 2081 § contract parties See thereby, determined are to also the annotations Restitution, in- common law rules of Restatement of the Law of rather than (1940). demnity contribution. D.C.E.D.Pa. 302 Act § 1939 re- F.Supp. 491, placed by 1952, 492 note See the Uniform Contribution 104 Among Act, July 19, Lumber Co. v. South- Tortfeasors Act of also Co., Cir., 1951, 1130, seq., P.L. 12 § Pacific et ern Purdon’s siding seq. Even without 2082 et § 900-907. Pa.Stat.Ann. agreement, railroad could have had liability particular ord shows that kind of
inescapable. p'art
I would reverse that of the district judgment judgment
court allowed
favor the railroad and
company for one-half the modified ver-
dict and I would direct that
entered in favor of the company
the can for the full amount of
plaintiff’s modified verdict the rail-
road. CORP. MOTORS ACCEPTANCE
GENERAL v. UNITED STATES.
No. 4557. Appeals
United States Court of *6 Tenth Circuit. 28, 1953.
Jan.