Summary
In Benson v. Penn Central Transportation Co., 228 Pa. Super. 45, 323 A.2d 160 (1974) the jury found all three parties liable, namely the railroad, the operator of the vehicle the plaintiffs were riding in, and the third party tortfeasor.
Summary of this case from Seaboard Coast Line R. Co. v. KarimOpinion
April 11, 1974.
June 21, 1974.
Trespass — Negligence — Personal injuries — Obligation of employer to furnish employe safe place to work — Employer engaging cab to transport workers to another location — Agency — Error in charge to jury.
1. In this case, the defendant-railroad (which was the employer of plaintiff) was obligated to furnish transportation to the plaintiff, a member of a work crew. The employer engaged a cab to transport the plaintiff and other members of the crew to another location. While en route to its destination the cab was involved in an accident. It was Held that the court below erred in instructing the jury that the employer-railroad would be liable for injuries to the plaintiff if the absence of seat belts in the cab was a cause of injuries to the plaintiff.
2. Where an employer, in furtherance of his obligation to provide transportation for an employe, engages the services of a reputable, regulated and certified common carrier, a jury may not be permitted to determine that the employer failed to furnish a safe place for its employe to work.
3. It was Held, in the circumstances of this case, that the cab company was carrying out an operational activity of the employer, and was an agent of the employer so that the cab company's negligence would be imputed to its principal, the employer-railroad.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 120, April T., 1974, from judgments of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 3784, in case of Moody J. Benson v. Penn Central Transportation Co., Edward Blakely and Frank O. Speelman, Inc., t/d/b/a Diamond Cab Company. Judgments vacated and new trial granted as to liability alone.
Trespass for personal injuries. Before WEIR, J.
Verdict for plaintiff and judgments entered thereon. Additional defendant appealed.
James P. McKenna, Jr., with him Dickie, McCamey Chilcote, for appellant.
Paul E. Moses, with him Evans, Ivory Evans, for appellee.
Argued April 11, 1974.
This appeal is from the order of the Court of Common Pleas of Allegheny County, Civil Division, refusing appellant's Frank O. Speelman, Inc., t/d/b/a Diamond Cab Company, motion for a new trial.
A verdict having been rendered after a jury trial in favor of the appellee, Moody J. Benson, against all three defendants we must consider all the evidence in the light most favorable to the appellee.
The facts in this case appear to be as follows:
Moody J. Benson, the appellee, was a trainman employed by Penn Central Transportation Company (hereinafter called Penn Central). On the night of April 9, 1969, he was at the Pitcairn Yards of his employer along with the other members of the crew to which he was assigned. He and the members of his crew were assigned a trip by the dispatcher to leave from the Conway Yards which was some miles away. It was the obligation of Penn Central to furnish transportation for the crew from Pitcairn Yards to Conway Yards so the dispatcher arranged for one of the appellant's cabs to pick up the crew and transport them.
On the way to Conway Yards, at a point on the Ohio River Boulevard where it intersects with Beaver Grade Road or the Haysville Intersection, the cab was involved in an accident with a vehicle driven by Edward Blakely and the appellee suffered injuries to his back.
It appears that the cab followed Blakely for several miles on the Boulevard until he turned right on a feeder road which almost paralleled the Boulevard. The cab proceeded on the Boulevard and when the traffic light turned green, the cab driver began to accelerate through the intersection when Blakely turned left and ran the light and struck the cab. Blakely was within the field of vision of the cab driver at all times and a warning that Blakely was coming out was shouted by the passengers, but to no avail.
The appellee filed suit against Penn Central under the Federal Employer's Liability Act and Edward Blakely. Penn Central joined Diamond Cab as an additional defendant. The verdict was found against all three. The court below then had the jury mold the verdict to a lump sum and directed a verdict in favor of Penn Central against Diamond Cab in a like amount.
Diamond Cab in this instance was carrying out an operational activity of Penn Central and would be the agent of Penn Central and its negligence would be imputed to its principal, Penn Central. Sinkler v. Missouri Pacific Railroad, Co., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958); Leek v. Baltimore Ohio Railroad Co., 200 F. Supp. 368 (1962). Diamond Cab would remain primarily liable for a judgment against Penn Central because of its negligence and a judgment over against it in Penn Central's favor is proper.
Negligence of the principal cannot be imputed to the agent. However, as appears to have been done here, the court below instructed the jury on the duty of Diamond Cab as a common carrier and on the motor vehicle rules and principles relevant to the case. He then instructed the jury as to Penn Central's obligation to furnish its employees a safe place to work under the Federal Employers Liability Act, § 1 (45 U.S.C.A.) and approved the plaintiff's requested point as follows: "If you find that the railroad could have foreseen that injury in some form was likely to its employes because of the absence of seat belts in a vehicle it caused to transport such employes in the course of their employment and that the absence of seat belts was a cause, in whole or in part, of injury to the plantiff, the railroad would be liable for such injuries and damages as the plaintiff sustained."
There is no requirement under the law which licensed or regulated the cab company as a common carrier to install seat belts or if furnished that they must be used; nor was there any federal act requiring same.
Penn Central had no authority to install seat belts in Diamond Cab Company vehicles or to demand that this be done by the cab company. Diamond Cab Company vehicles conformed with the law, were inspected and certified for operation. Penn Central by engaging the services of a reputable, regulated and certified common carrier exhibited sound judgment and to permit a jury to determine under these circumstances that Penn Central failed to furnish a safe place for the appellee to work was error requiring a new trial for Diamond Cab Company and Penn Central. Carter v. Union Railroad Company, 438 F.2d 208 (3rd Cir. 1971).
Judgments against Frank O. Speelman, Inc. t/d/b/a Diamond Cab Company and Penn Central Transportation Company and its duly appointed trustees are vacated and they are granted a new trial as to liability alone.