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June 16, 1977

Stanley PYZYNSKI, Plaintiff,
PENNSYLVANIA CENTRAL TRANSPORTATION CO., and Dayton Malleable, Inc., Defendants

The opinion of the court was delivered by: ELFVIN


 ELFVIN, District Judge.

 A jury trial resulted in a verdict for plaintiff Stanley Pyzynski *fn1" against defendant Dayton Malleable, Inc. ("Dayton") *fn2" and a verdict of no cause of action against Pennsylvania Central Transportation Co. ("Penn Central"). Dayton has moved to correct the verdict or, in the alternative, for a new trial on the basis of the alleged inconsistency of such verdict.

 Plaintiff, while an employee of Penn Central, was thrown from a railroad car while said car was a unit of a Penn Central train operating on tracks on Dayton's premises. This event occurred when the train struck a large steel object which had somehow come to be on the tracks.

 It is the position of Dayton that, when a railroad employee is injured in his employment while on property other than the railroad's, the Federal Employers' Liability Act (45 U.S.C. §§ 51 et seq.) ("the Act") mandates either a verdict of no cause of action, a verdict against the railroad or a verdict against both the railroad and the landowner. Dayton contends that it is inconsistent to find negligence by the landowner and no negligence by the railroad.

 A jury's verdict is not lightly to be overturned. In determining whether a verdict is consistent, "[the] general rule that a court should reconcile the jury's verdict if at all possible, Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963), is entitled to broad application." Henry v. A/S Ocean, 512 F.2d 401, 406 (2d Cir. 1975). However, where there is no view of the case that makes a jury's answers to special interrogatories consistent, the general verdict cannot stand. *fn3"

 The Act imposes upon an employer railroad a nondelegable duty to use reasonable care to furnish to its employees a safe place to work and this duty extends beyond its premises and to property which third persons have a primary obligation to maintain. Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963). The Act does not, however, make the railroad an insurer of its employees' safety. Inman v. Baltimore & Ohio Railroad Company, 361 U.S. 138, 80 S. Ct. 242, 4 L. Ed. 2d 198 (1959). In order to recover under the Act, a railroad employee must show that he was injured as a proximate result of an accident which occurred in the course of his employment by the railroad and due to the latter's negligence.

 It is undisputed that plaintiff was an employee of Penn Central at the time of his injury. By its answers to special interrogatories 1 and 2, the jury found the railroad free from negligence. There is no basis for upsetting the jury's verdict that Penn Central was not negligent in any regard other than and beyond its nondelegable duty to provide a safe place to work. Dayton's duty not to obstruct the side track cannot tenably be construed as Dayton's carrying out of Penn Central's "operational activities" so as to impute Dayton's negligence to Penn Central. Cf. Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958); Carter v. Union Railroad Company, 438 F.2d 208 (3rd Cir. 1971); Carney v. Pittsburgh & Lake Erie Railroad Company, 316 F.2d 277 (3rd Cir. 1963); Leek v. Baltimore & Ohio Railroad Company, 200 F. Supp. 368, 370-71 (N.D.W.Va.1962). Compare, Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 397-98, 80 S. Ct. 789, 4 L. Ed. 2d 820 (1960).

 Upon argument to correct or set aside the verdict, Dayton cited Payne v. Baltimore and Ohio Railroad Company, 309 F.2d 546 (6th Cir. 1962), cert. denied 374 U.S. 827, 83 S. Ct. 1865, 10 L. Ed. 2d 1051 (1963), which is close factually to the instant case. Therein the railroad's employee sustained fatal injuries when, in the course of his duties and while riding on a car which the railroad's crew was moving onto an industry's trackage pursuant to a contract seemingly close in its terms to that which was put in evidence here, the car was caused to derail due to a large quantity of ashes which the industry had allowed to accumulate on and between the tracks. It was admitted that the industry was negligent in placing the ashes there and in allowing the condition to persist. The industry appears not to have been joined as a party defendant and a verdict was rendered against the railroad. The latter claimed on appeal that it was error for the trial judge to have charged that the jury was required to impute the industry's negligence to the railroad even though the latter might itself be free of independent negligence. The Court held (p. 549):

"Defendant owed a duty to decedent Payne. The jury was properly charged by the District Judge. If the jury found liability by virtue of defendant's independent negligence in sending the boxcar on a track having a dangerous condition present which could have been foreseen, the verdict is sound. If it found liability by virtue of imputing the negligence of SUCO [the industry] to defendant, based on defendant's non-delegable duty regarding safety for its employees, the verdict is sound. Regardless of the rights between themselves, of defendant and of SUCO, defendant may not legally delegate to another its duty to its employee, and thereby escape liability to such employee. This is the basis for the FELA [the Act]. If defendant does delegate and relies upon the services of its agent to carry out its own duty, it may not shift its liability from itself to said agent when an employee seeks to hold it directly liable. Under FELA the employer is the one owing the duty to the employee. The employee need not look elsewhere for his protection. He has a right under FELA to rely on his employer and none other. When the employer delegates its duty, or abdicates its control, the employer takes the risk, not the employee. There is ample basis in the record to sustain the jury's finding of liability regardless of which of the two theories it may have proceeded under, that of independent negligence or that of imputed negligence."

 The decision itself was not unanimous and the denial by the United States Supreme Court of the application for a writ of certiorari is of no authoritative or precedential value. United States v. Shubert, 348 U.S. 222, 228-29, 75 S. Ct. 277, 99 L. Ed. 279, (fn. 10) (1955); Brown v. Allen, 344 U.S. 443, 451-57, 488-97, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Agoston v. Pennsylvania, 340 U.S. 844, 71 S. Ct. 9, 95 L. Ed. 619 (1950); Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-19, 70 S. Ct. 252, 94 L. Ed. 562 (1950). Its rationale has not, so far as I have been able to discover, been adopted by the Second Circuit Court of Appeals and has been limited by its patron tribunal to situations wherein there was a contractual relationship between the actor and the carrier owing its employee a safe place to work. Epling v. M. T. Epling Company, 435 F.2d 732, 736 (6th Cir. 1971), cert. denied 401 U.S. 963, 91 S. Ct. 990, 28 L. Ed. 2d 247 (1971). Payne was cited and quoted by the same court in Schiller v. Penn Central Transportation Company, 509 F.2d 263, 269 (6 Cir. 1975), as the basis for imputing to the railroad the negligence of the contracting served industry as regards poor lighting and ground conditions in that part of the industry's premises where the railroad's employee was working when injured. The trial jury and the trial court each had separately found the industry negligent due to said conditions and the railroad negligent because of the unsafe condition of the car on which the employee was working and because of the railroad's failure to instruct the employee adequately. The appellate court found such findings to be supported by the evidence. The verdict in the employee's favor had been returned against both the railroad and the industry, which similarly was upheld by the appellate court. Imputation vel non had no place in the determination of the case. Payne's imputation of negligence holding was cited in Carter v. Union Railroad Company, supra, at 211, but therein the court found the negligence to have occurred in and as part of the railroad's "operational activities". Payne did not hold, and I do not find, that keeping a sidetrack clear of obstacles such as ashes or steel objects is part of the servicing carrier's "operational activities". If the contrary were true, the maintenance and repairs of a sidetrack such as were involved in Ward would also be operational activities and our highest court has ruled otherwise. Holladay v. Chicago, Burlington & Quincy Railroad Co., 255 F. Supp. 879 (S.D.Iowa 1966), presented a neurological ailment and injury due to contact with herbicide which had been sprayed by the railroad's contractee along the tracks. The case was tried to the judge only. Sinkler is cited in support of the holding that "the mere fact that the spraying activity was performed by employees of Nalco Company under a contract with defendant does not relieve defendant of fault attributable to employees of said company" (Id., at 883) and Payne is cited immediately thereafter in support of the holding that "[defendant] had a non-delegable duty to furnish its employees a safe place to work". Without mentioning "operational activities" or "imputation of negligence" that district court necessarily proceeded on one or both premises, for the opinion points out that Nalco was "held to the skill of an expert", that there was a duty on its part to warn those who might have come into contact with the chemicals, that Nalco's product labels warned of possible injury and that Nalco's employees who did the spraying were instructed to wash after having contact with the chemicals and soap and water were provided in the "spray car" for such purpose. It was noted that defendant's employee was not warned and that alerting him to the ambient dangers was defendant's duty. (Id., at 884.) Nalco was not sued. Necessarily, Nalco's negligence in failing to warn was imputed by the court to the railroad with which it had contracted to clear the tracks of weeds. I disagree with this reasoning but would support the conclusion of liability on the carrier's part because the railroad knew that the spraying of chemicals on tracks owned and maintained by it had been completed only hours before its employee in his work would necessarily come into contact with them and it owed him the duty to acquaint itself with any possible danger and to warn him suitably. In Pennsylvania Railroad Co. v. M.K.W. Corporation, 301 F. Supp. 991 (N.D. Ohio 1969), the railroad had settled with the decedent employee's estate and was suing for full indemnification from the industry which it contractually served and which owned the trackage on which the fatal accident occurred. Involved were certain iron gates which had been longstanding in their close proximity to the industry's tracks. A contract comparable to that before me obtained. Payne was cited re the nondelegability of the railroad-employer's duty to provide a reasonably safe place to work. Further, however, it was noted that the railroad had had full notice of the insufficient clearance of its cars at the gate and had not ceased operations there pending remedying of the dangerous situation. The strictures of Ohio law were applied to the contract between the industry and the railroad to bar full indemnification absent "the mandatory requirement of a definite provision of non-liability for [its own] negligence". (Id., at 994-95.) Both parties were independently negligent and the liability was joint. None of the industry's negligence was imputed to the railroad.

 Putting Payne aside -- which I do -- the "bottom line" herein is that, unless the performance of an operational activity of the railroad is contractually left to another, there is no room for imputation of the other's negligence to the railroad. In the instant case, Dayton was not carrying out any of Penn Central's operational activities and, as a consequence, no negligence on the part of Dayton can be imputed to Penn Central.

 I did not charge the jurors that they must or even that they could impute Dayton's negligence to Penn Central but no exception was taken by Dayton to such omission. *fn4" I cannot now say whether or how I would have altered my instructions; I am satisfied at this juncture that such alteration was not required or warranted.

 The sanctity and correctness of the jury's answer to special interrogatory 1 is more to be questioned. Certainly, a contrary response would not be disturbed by me. But, even such response would avail Dayton nothing. Under the Private Side Track Agreement of April 8, 1915 (Ct.Exh. 1), which ...

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