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Bascho v. Pennsylvania Railroad Co.

Decided: April 20, 1949.

EDWARD BASCHO, PLAINTIFF-APPELLANT,
v.
PENNSYLVANIA RAILROAD CO., A CORPORATION, DEFENDANT-RESPONDENT



Jacobs, Eastwood and Bigelow. Jacobs, S.j.a.d.

Jacobs

This is an appeal from a judgment of nonsuit entered in the Essex County Court of Common Pleas in an action under the Federal Employers' Liability Act to recover for injury allegedly resulting from the negligence of the defendant.

On August 24, 1944, while in the employ of the defendant railroad as a fireman, the plaintiff was ordered to report to the engineer in charge at the Meadows Yard, Jersey City. He did so and while engaged in his work a steel sliver went through his glove and punctured his skin. Thereupon the engineer sent him to the assistant yard master for first aid treatment. He told the assistant yard master about the sliver, received iodine and band-aid which he placed on the wound, and then returned to work shoveling coal. On the following day the engineer sent him to the doctor's office where his

finger was dressed by a nurse and he was told that he should come back "in a couple of days" if his finger still bothered him. That afternoon he was ordered to sign up for a trip on a fast freight to the Potomac Yards in Virginia. He left the Meadows Yard at 4:45 P.M. and arrived at the Potomac Yards during the following morning at 7 A.M. Although no coal shoveling was required, his duties still required the use of his hands. About four hours after he left Jersey City his finger swelled, he was in severe pain, and it was necessary to loosen his bandage. No first aid or other medical equipment was available on the trip.

When he arrived at Alexandria, Virginia, he was in great pain and reported to the assistant yard master or crew dispatcher who directed the engineer to take him to the Alexandria Hospital. However, he was not taken to the hospital until 1:30 P.M., six and one-half hours after his arrival, the plaintiff testifying, that "the engineer was tired; he wanted to get some sleep. That is why he held off to 1:30 to take me to the hospital." The interim hours were spent at the Railroad Y.M.C.A. When he arrived at the hospital with the engineer, the plaintiff was immediately placed under an anesthetic, a hole was bored in his finger, a drain was placed therein, and his finger was heavily bandaged. He was discharged about 5 P.M. and was instructed to take sulfa pills every hour. He returned with the engineer to the Railroad Y.M.C.A. and tried to sleep but was unable to do so because of the pain. His return trip was scheduled for 2:30 A.M. and he arrived at the yard about 2:15 A.M., at which time he spoke to the assistant yard master or crew dispatcher and told him he was in pain and "wanted to deadhead home," i.e. , ride home as a passenger. This request was refused, the plaintiff being told that there was a severe manpower shortage; that the defendant "couldn't wait to send a man up from a different division to cover the job," and that the plaintiff "had to cover the job, because they had nobody to cover it." Accordingly, the plaintiff worked on the return trip home, using his hands, and arrived at the Jersey City yard nine and one-half hours later. His condition had become

progressively worse and as soon as he arrived at Jersey City the crew dispatcher immediately sent him to the Jersey City Medical Center where he was admitted to the emergency ward after a wait of two hours. He remained at the Medical Center seventy or seventy-one days during which period four operations were performed on his finger.

All of the medical attention was arranged for by the plaintiff's supervisory employees and he was not called upon to pay for any portion thereof. The rules of the railroad provide that in case of injuries to persons occurring on the railroad "first aid and medical care must be provided as prescribed in special instructions on time-table." The special instructions state that employees injured on company property will be treated by the nearest physician named therein without cost and that if hospital attention is necessary they should be sent, if practicable, to one of the hospitals named therein. Employees are instructed in the rules to report promptly to supervisors "all injuries, no matter how trivial" and to obtain immediately, "first aid and, if necessary, medical attention for all injuries."

At the close of the taking of the testimony from which the jury might infer the foregoing facts, the plaintiff rested his case "with the exception of calling the treating physician and offering the Medical Center hospital records." Thereupon the defendant moved for a nonsuit on the ground that there was no testimony indicating any negligence on the defendant's part which proximately resulted in or aggravated the plaintiff's injury. The motion was granted and the plaintiff's appeal is from the judgment entered thereon.

The Federal Employers' Liability Act (45 U.S.C.A. , §§ 51 et seq.) authorizes an employee of an interstate railroad carrier to recover for injury if it resulted "in whole or in part from the negligence of any of the officers, agents or employees of such carrier." Although the act retained the employee's burden of presenting evidence from which such negligence and causal relation to his injury could be inferred [ Cowdrick v. Pennsylvania Railroad Co. , 132 N.J.L. 131 (E. & A. 1944); certiorari denied, 323 U.S. 799, 89 L. Ed. 637

(1945)] it removed the defense of contributory negligence as a total bar to recovery (45 U.S.C.A. , § 53) and by an amendment likewise removed the defense of assumption of risk (45 U.S.C.A. , § 54). See Tiller v. Atlantic Coastline Railroad Co. , 318 U.S. 54, 58, 87 L. Ed. 610, 612 (1943) where the Supreme Court held "that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment;" that the employer's liability was to be determined under the general rules defining negligence, in part, as "the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation;" and that where, from the evidence presented, different inferences as to the negligence of the carrier might be drawn, the case should go to the jury. See, also, Blair v. Baltimore & Ohio R. Co. , 323 U.S. 600, 89 L. Ed. 490 (1945) where the court pointed out that the duty ...


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