Before MAJOR, Chief Judge, KERNER, Circuit Judge, and WHAM, District Judge.
The plaintiff who is the widown and the administratrix of the estate of Edward J. Stanczak, deceased, has brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, and the Safety Appliance Acts, 45 U.S.C.A. §§ 1-13, to recover damages for the conscious pain and suffering and the death of said Edward J. Stanczak, a trainman employed by the defendant, who, while engaged in a switching operation constituting interstate commerce, was killed at 4:10 P.M. on June 21, 1946 when his body was rolled and crushed between the railroad box car then being switched and the loading platform of defendant's freight depot at Downington, Pennsylvania. He was conscious, not to exceed a minute and died from his injuries shortly thereafter. He left a widow, Mary Stanczak, and three children aged 10, 9 and 3. His age was 30 years, 6 Months. He was earning approximately $125 every two weeks which he turned over to his wife for family use. His expectancy was 37.9 years.
Plaintiff's complaint charged that while Stanczak was an employee of defendant in performance of his duties within the meaning of the Federal Employers' Liability Act and was in exercise of ordinary care for his own safety the defendant disregarded its duty toward him in one of the following ways:
1. In failing to use ordinary care (a) to provide him a safe place to work; (b) to provide him with reasonably safe appliances with which to do his work.
2. In negligently (c) permitting edge of platform to become rotten, loose, torn and defective; (d) permitting large nails and spikes to protrude from edge of said platform and (e) permitting the top step of the caboose to become worn-out, loose and defective so that a piece of the board of said step gave way and became detached from said step in violation of the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-13.
Plaintiff further alleges that one or more of said acts of negligence caused Stanczak, while in performance of his duties and while riding on the steps of the caboose, to trip and fall and as a result he was rolled in the close clearance between the platform and the box car sustaining injuries from which he died.
Defendant's answer denies that case arises under the Safety Appliance Act, denies that Stanczak was in exercise of ordinary care for his own safety, denies any and all alleged acts of negligence and that any such act on its part caused Stanczak's injury and death in whole or in part.
Most of the facts are undisputed. The testimony was conflicting as to certain facts including the physical condition of the loading platform and the platform of the caboose. The evidence shows or fairly tends to show the following facts: The freight depot and platform in question were 200 feet long from east to west. The platform proper was 122 feet long, 8 feet wide at its east end and its eastern portion was curved to the left to conform with the railroad tracks which served it. The elevation of the floor of the platform was 4 feet 4 inches from the top of the railroad ties which made it level with the floor of the said box car as it stood on said tracks. The box car was 40 feet long and 9 feet 2 inches wide. The clearance between the edge of the platfrom and the side of the box car in question, when moving, was from 4 to 6 inches. On the curve the clearance was from 4 to 10 inches. The floor of the loading platform was made of wooden planks with the ends extended toward the railroad tracks. The platform had been constructed sometime before 1908 and was worn from much use. Some repairing has been done from time to time. Though the ends of none of the planks extended beyond the general line of the platform some of them were shorter than others, causing an uneven and irregular line or edge. At certain places the ends of the boards were decayed and broken, causing a ragged or jagged edge. At other places the boards were raised up, unlevel in height and irregular in length, causing an uneven, irregular and roughened edge. The edge of the platfrom toward its easterly end was irregular, uneven, rough and, in places, jagged. There were no large nails or spikes protruding from the edge of the platform. There were no signs at or near the platform warning of the close clearances or the condition of the platform but Stanczak had performed switching operations there several times before the day of the accident and was warned that day of close clearances.
At the time in question defendant's crew then consisting of an engineer, fireman and two brakemen, tramulto and Stanczak (the conductor having remained at a nearby crossing), was engaged in a switching operation to move a box car which stood on the tracks adjacent said platform with its east end 36 feet west of the east end of said platfrom. They approached the car from the east with a locomotive headed westwardly pushing a caboose or cabin car in front of it for coupling to and switching the box car. On the front end of the caboose, being the end farthest from the locomotive, was a platform of wood about 5 feet by 3 feet in size and approximately the height of the floors of the box car and loading platform. Leading down and outwardly from each side of the caboose platform at an angle of 45 degrees were three steps constructed of wood 39 inches in length, 7 inches wide and with a rise between them of 9 inches. The third or lowest step was approximately 27 inches below the level of the loading platform. The outer edge of the third step was, according to one witness, about even with the outer wall of the caboose, and, according to another, 4 inches inside. While moving toward the box car for coupling Stanczak stood on the lowest step on the front end of the caboose on its side next to the loading platform, facing away from the engineer which was the proper position from which to relay to the engineer the signals required in the coupling operation. To observe the movement and properly to relay the signals to the engineer it was necessary for Stanczak to lean out toward the loading platform beyond the wall of the caboose, using his right hand for signalling and his left to hold to the grabiron on the caboose. This he did, and the coupling was made without incident. Stanczak then changed his position on the lower step of the caboose so as to face toward the engineer and gave the engineer the signal to reverse the direction of the movement. The engineer then turned his face away from Stanczak and began the reverse movement. Tramulto, the other brakeman, had observed Stanczak standing on said lowest step while giving the incoming signals for the coupling. After the coupling was made he saw Stanczak, standing on the lowest step, give the reverse signal. The reverse movement began slowly without a jerk and Tramulto immediately turned and started up the ladder on the box car to adjust the brakes. In a matter of seconds he looked again and Stanczak had disappeared. He climbed down and saw him being rolled between the box car and the loading platform. Tramulto yelled and signalled for the engineer to stop and the movement was stopped immediately. Stanczak dropped down by the tracks and was heard to say, "Please help me." No one saw Stanczak at the time he was first caught between the car and the platform and no one saw how it happened. There was no occasion for him to get on the loading platform but no one saw whether or not he did so. He was a man of careful work habits.
The caboose was of an old type and had been in service since 1919. The edge of the platform of the caboose was decayed and broken in one place causing a space 3 inches long and an inch and a quarter deep at the top of the steps. There was occasion for Stanczak, after he had given the reverse signal, to ascend the steps to the platform of the caboose.
The jury returned a verdict for plaintiff in the sum of $25,000.
As stated in appellant's brief the contested issues on this appeal are:
1. Was there any evidence that any negligence upon the part of the defendant or of defective equipment in the operation of its ...