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Whelan v. Penn Central Co.

decided: September 11, 1974.

EUGENE J. WHELAN, PLAINTIFF-APPELLEE,
v.
PENN CENTRAL COMPANY, NOW KNOWN AS PENN CENTRAL TRANSPORTATION CO., DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE-APPELLANT, V. THE UNITED STATES OF AMERICA, THIRD-PARTY DEFENDANT-APPELLANT-APPELLEE AND FOURTH-PARTY PLAINTIFF-APPELLEE, V. THE FEDERAL STORAGE WAREHOUSE, FOURTH-PARTY DEFENDANT-APPELLANT



Appeals from plaintiff's judgment for personal injuries against railroad under Boiler Inspection Act, for railroad against side track owner third-party for contribution and for third-party over against side track lessee fourth-party for indemnity. Affirmed.

Smith and Mansfield, Circuit Judges, and Bartels, District Judge.*fn* Mansfield, Circuit Judge (Dissenting).

Author: Smith

SMITH, Circuit Judge:

These are appeals from judgment on a verdict entered November 8, 1973 after a jury trial in the United States District Court for the Southern District of New York, Thomas P. Greisa, Judge, awarding plaintiff-appellee Whelan $400,000 against defendant-appellant and third-party plaintiff-appellee Penn Central, and from judgments pursuant to a decision by Judge Greisa dated February 11, 1974, awarding Penn Central $200,000 against third-party defendant-appellant and fourth-party plaintiff-appellee United States of America, and awarding the United States $200,000 against fourth-party defendant-appellant Federal Storage Warehouse. We affirm in all respects.

On January 29, 1969, Eugene Whelan was working as a brakeman on a Penn Central engine crew which was engaged in a switching operation in the Raritan Arsenal, a facility in Edison, New Jersey, which is owned by the federal government. Light rain and sleet had been falling since early morning, and the temperature hovered around thirty degrees Fahrenheit. There was an icy glaze on the ground and on the equipment. At about mid-day, Whelan's crew was in the process of moving two freight cars from a siding to the upper yard of the Arsenal. As the engine with the two cars approached the junction of the lead track and the main track, Whelan started down the steps at the rear of the engine, intending to stop on the bottom step, signal the engineer to stop the engine, step off the engine onto the pavement adjacent the track after the train came to a halt, and throw the switch. As he came down the steps, the train was proceeding on a slight downgrade at about three miles per hour. His left foot slipped as it touched the bottom step, and so did his hands when he tried to break his fall by using the hand grabirons of the step assembly. When his feet touched the pavement, the train seemed to speed up somewhat. Whelan managed to take one to three steps sideways on the ground before losing his grip on the lower part of the grabiron. The pavement was icy and broken in the area where his feet landed. He slipped, tripped, fell to the ground, was hit and dragged a short distance by the freight car. As a result, he was seriously injured.

The jury found that Penn Central was liable to Whelan under the Boiler Inspection Act, 45 U.S.C. ยงยง 22-34, which provides, inter alia, that locomotives and "all parts and appurtenances thereof . . . [shall be] in proper condition and safe to operate in the service to which the same are put. . . ."*fn1 Sitting without a jury, Judge Greisa subsequently ruled that the accident was caused by the "joint or concurring negligence" of Penn Central and the United States Government in that the Government was obligated by agreement with Penn Central to maintain the pavement on which Whelan slipped and tripped. And, pursuant to that same agreement, judgment was entered against the federal government for one-half of the damages assessed against Penn Central, or $200,000. The court further found that Federal Storage Warehouse must indemnify the United States for that $200,000 judgment because the duty of maintaining the pavement in question had been delegated to Federal Storage Warehouse under an easement agreement between the United States and Federal Storage Warehouse. Penn Central appeals the jury verdict in favor of Whelan and the failure of the court below to award Penn Central full indemnification against the United States. The United States appeals the award of partial indemnification to Penn Central. Federal Storage appeals the $200,000 judgment against it.

A. Whelan v. Penn Central

Penn Central attacks the jury verdict on four grounds.

First, it contends that there was insufficient evidence to support the jury's finding that it violated the Boiler Inspection Act. The evidence, however, was substantial. On the morning of the day of the accident, the engineer described in his "Locomotive Inspection Report" defects in the right-side step assembly from which Whelan fell: "Rear step RS bent and small metal strip coming loose." Penn Central took no corrective measures between the time of the report and the time of the accident. Furthermore, the step assembly (steps and grabirons) had been coated with ice for several hours prior to the accident. The engineer made a second, relevant entry: "Adjust excess brake piston travel." Engineer Johnson testified that the effect of "excess brake piston travel" is to reduce the effectiveness of the braking system. No adjustment was made prior to the accident. Penn Central conceded below that the condition of the brake violated the Act and argued that the condition was unrelated to the accident. But this is a matter for the jury. We will not disturb a Boiler Inspection Act verdict which has such an evidentiary basis, Bolan v. Lehigh Valley R.R., 167 F.2d 934 (2d Cir. 1948). The jury could well have found that the condition of the step assembly, by itself or in conjunction with the defective brake, was a cause of Whelan's fall.

We must therefore reject appellant's attack on the sufficiency of the evidence. We turn to its legal claim. Judge Greisa instructed the jury:

Under the law the presence of foreign matter, such as ice, can give rise to liability under the Act. But, again, with respect to the ice as with respect to everything else, you are to apply the criterion of the statute and that is whether the steps by virtue of the ice or otherwise were made improper in their condition, were made unsafe to operate in such a manner as to create unnecessary peril to life or limb.

Penn Central contends that the Boiler Inspection Act is not violated by slippery conditions caused by the weather and that we must reverse the judgment because the icy condition of the step assembly clearly contributed to the accident and to the jury's decision. The argument has some force, but we conclude that we must reject it in light of prior case law.

In Lilly v. Grand Trunk Western R.R., 317 U.S. 481, 87 L. Ed. 411, 63 S. Ct. 347 (1943), plaintiff fell from the top of a locomotive tender while attempting to lower a water spout. The top of the tender was icy, and plaintiff claimed that there was a small leak in the collar of the water manhole. The jury found a violation of the Boiler Inspection Act, while also finding in a special interrogatory that there was no leak. The Court, holding that the presence of ice on the tender top was sufficient to violate the Act, upheld the judgment, relying somewhat on a federal regulation which provided that the tender top be kept clean and means be provided to carry off waste water. The Court emphasized that the Boiler Inspection Act is to be construed liberally and concluded that the regulation ". . . only fortifies a result which we think the jury could probably have reached even in the absence of such a rule." 317 U.S. at 489.

This court construed Lilly in Calabritto v. New York, New Haven & Hartford R.R., 287 F.2d 394 (2d Cir.), cert. denied, 366 U.S. 928, 6 L. Ed. 2d 387, 81 S. Ct. 1649 (1961), where plaintiff slipped on sand and oil located on the platform of defendant's switching engines. Defendant argued that Lilly authorized recovery for nonstructural or nonmechanical defects only where the dangerous condition results from a violation of federal safety regulations. Although the court reached its decision with some reluctance, as is evident in the two concurring opinions, it held that Lilly must be read as holding that dangerous conditions caused by foreign substances may give rise to liability under the Act in the absence of such a violation.

Given this prior treatment of the Boiler Inspection Act, we must reject appellant's argument that its failure to violate a specific federal regulation immunizes it from liability on the basis of the icy condition of the step assembly. Appellant relies on a suggestion in Raudenbush v. Baltimore & O. R.R., 160 F.2d 363, 366 (3d Cir. 1947), to the effect that the violation of the regulation is an indispensable part of the holding in Lilly. To the extent that Raudenbush actually stands for this proposition and also represents the current position of the Third Circuit, both of which are questionable, Calabritto, 287 F.2d at 396, appellant's remedy is with a higher court.

Appellant's reliance on Turner v. Clinchfield R.R., 489 S.W.2d 257 (Ct. App., Tenn. 1972), cert. denied, 411 U.S. 973, 36 L. Ed. 2d 696, 93 S. Ct. 2168 (1973), is also misplaced. There, plaintiff slipped on ice which had fallen from the end of a tunnel onto the engine where plaintiff was working. The court held that the presence of this ice did not violate the Boiler Inspection Act because defendant could not have foreseen and therefore taken measures against this dangerous condition. Perhaps a railroad in Tennessee cannot be expected to guard against icicles falling onto engines en route. But a New Jersey railroad may well be held to a higher standard with respect to gradual ice formation in its own railyard. The icy condition in dispute in this case was foreseeable.

Today's decision is not necessarily the decision which Judge Friendly feared would be at the bottom of the slippery slope he identified in his ...


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