Before KALODNER and STALEY, Circuit Judges, and STEEL, District Judge.
Was sufficient evidence adduced at the trial to "justify with reason"*fn1 the jury's finding that the defendant railroad's negligence played a part in producing the injury for which damages were awarded to plaintiff, its employee, in his action under the Federal Employers' Liability Act?*fn2
That is the primary issue presented by this appeal by defendant from the judgment suffered by it below on the jury's verdict and the denial of its motions for judgment or a new trial.
The facts as disclosed in the District Court's opinion, D.C.W.D.Pa.1958, 162 F.Supp. 324, and the record, may be summarized as follows:
Plaintiff, Walter Dunn, was employed by defendant, Conemaugh & Black Lick Railroad since 1942, as a member of the crew of a railway motor car, known in railroad parlance as a "Casey Jones", which carried supplies to and from track repair gangs. His job involved lifting extremely heavy rails weighing at times as much as a thousand pounds.
On January 28, 1952, plaintiff, then thirty-six years old, underwent an operation for chronic ulcers requiring a gastric resection of two-thirds of his stomach. He was discharged from the hospital on February 8, 1952. Before he could return to work he was required by defendant to submit to a physical examination by an examining physician of its selection, one Dr. Carney, to determine his fitness to do so.*fn3 On February 29th Dr. Carney, who was deceased at the time of trial, certified plaintiff as fit for his prior employment as a "Casey Jones" man. Plaintiff returned to that work on March 3d. Although he finished out the day he complained to his foreman of pain. On March 4th he again reported for work but was unable to finish out the day and reported to a dispensary on the premises where he was told to consult his own physician. On March 6th plaintiff applied to defendant for sick benefits because of a "relapse of ulcers". On March 8th plaintiff's surgeon, Dr. McHugh, supplied him with a belt to wear for support. On March 12th Dr. McHugh again examined plaintiff and noted on his application for sick benefits that he would be able to return to work on April 3d. Following a further examination on March 18th, Dr. McHugh wrote to Dr. Carney requesting that he permit plaintiff "to return to work". Dr. Carney again examined plaintiff and certified him as "able to resume his regular work". Plaintiff returned to work on March 19th "throwing switches". This work was classified as "heavy" although lighter than Casey Jones work. Plaintiff early in the day complained that he "just never felt right". The next day plaintiff applied for lighter work as a welder's helper but a fellow employee who had seniority was given the job. Plaintiff continued to work at his assigned task, "throwing switches". On March 21st he experienced a sharp pain in his abdomen while throwing a stiff switch. He asked the track foreman for a dispensary slip which was refused because "* * * they couldn't do nothing about it because that was a sickness, it wasn't an injury". Plaintiff continued working. On May 23d he was examined by Dr. McHugh and told he had developed a hernia which should be repaired. Plaintiff, however, continued working until June 2d when he was forced to leave his job because of the pain attending a swelling of the abdomen at the incisional area, accompanied by a ventral hernia. He was hospitalized on July 13th after which he underwent two operations for hernia, one on July 14th, the other on July 28th when tantalum mesh was embedded in his abdomen to strengthen it. He was discharged from the hospital on August 8th and received sick benefits until certified by Dr. Carney on October 8th to his old job as a member of a Casey Jones crew. Some ten months later, on August 4, 1953, plaintiff developed another ventral hernia following his lifting of a heavy rail. An operation followed on September 4, 1953, when another and larger piece of tantalum mesh was embedded in the abdominal wall. He was discharged from the hospital on September 16th. He then bid for and obtained, under his seniority rights, the lightest work he could get - a welder's helper. Plaintiff presently has a large ventral hernia about the size of a grapefruit.
At the trial medical testimony was adduced that the ventral hernia suffered by plaintiff was due to his premature return to heavy labor and that the successive hernias resulted from the incisional area having been weakened by his assigned strenuous tasks on March 21, 1952 and thereafter until June 2, 1952.
Further, testimony was adduced that not only Dr. Carney, but defendant's supervisory personnel as well, had knowledge of plaintiff's drastic surgery prior to March 21, 1952, and that his superiors knew he suffered pain while performing the arduous work assigned to him and that he had sought lighter duties. On that score the testimony established that it was defendant's policy to give light work only to such employees who had been injured at work and not to merely ailing employees.
Dr. McHugh testified that prior to March 21, 1952, he talked with a Mr. Kress, "a liaison officer from the railroad who acted as coordinator between management and the medical side and made an effort to have him, if possible, get something not too strenuous" for the plaintiff because he was "fearful * * * complications would result if he was to resume heavy work."
Kress, who described himself as defendant's personnel representative in March 1952, corroborated Dr. McHugh's testimony. He testified that after talking with Dr. McHugh in mid-march 1952, he called plaintiff's supervisor, a Mr. Dorman and "asked him if there was any light work they could give Mr. Dunn."
Victor E. Simmons, defendant's assistant general superintendent in 1952 and 1953, testified that he and other of defendant's personnel, knew of plaintiff's condition before he returned to work in March 1952 and was "concerned about it."
It was stipulated at the trial that defendant and the Bethlehem Steel Company ("Company") are wholly-owned subsidiaries of the Bethlehem Steel Corporation ("Corporation"); that the largest part of defendant's business consists of railroad services to Company's facilities; a large portion of the tracks used by defendant is owned by Company and within Corporation's plant; that defendant "employs no doctors, no nurses and maintains no dispensaries" but that pursuant to a contractual arrangement between defendant and Company any of its employees who have occasion to need the services of a doctor and nurses or a dispensary while working for defendant uses Company's dispensaries and are treated by its doctors or nurses, and employment examinations and examinations for fitness to return to work are also performed by doctors employed by Company; Company receives from defendant, pursuant to the contractual arrangement, a monthly payment of a fixed sum in return for the right to use the services of doctors and nurses or dispensaries as outlined above; and Company employed four doctors who worked out of its main dispensary, three of them treating accident cases, and the fourth giving physical examinations. In 1952 Dr. Carney was the examining physician.
Since the defendant contended at the trial that Dr. Carney was not its employee but an independent contractor and that it was therefore not liable for his negligence, if such negligence existed, in certifying plaintiff as fit to return to work, the District Court, after charging the ...