
    Howard v. Pennsylvania Rd. Co.
    
      (Decided May 26, 1930.)
    
      Messrs. Deeds S Cole, for plaintiff in error.
    
      Messrs. Fraser, Hiett, Wall & Effler, for defendant in error.
   Lloyd, J.

The plaintiff in error, Sylvester Howard, was plaintiff, and the defendant in error, Pennsylvania Railroad, was defendant in the action commenced in the court of common pleas, and will be so designated herein.

Plaintiff, an employee of defendant, sought to recover damages for personal injuries alleged to have been caused by negligence of the defendant. At the conclusion of all of the evidence the trial judge directed a verdict and entered a judgment in favor of the defendant. The only question presented to this court is whether or not, in so doing, the court erred.

It is conceded that the alleged cause of action of the plaintiff is governed by the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S. Code) and the law applicable thereto as announced by federal decisions. The defendant maintains extensive railroad yards at the easterly corporation limits of Toledo. Six tracks of defendant cross East Broadway, of which two are main tracks and four are side tracks. North of East Broadway are the shops of the defendant; south of East Broadway, and to the west of the main tracks, is the departure yard, consisting of seven tracks and a lead track; east of the main tracks and south of East Broadway is a receiving yard consisting of a lead track and twenty-seven additional tracks for switching and classification purposes. These yards and tracks were at the time in question open and unfenced, and the evidence shows that boys of 14 or 15 years of age were often seen there, especially, on Saturdays, picking up coal, and that other persons having no right to be there also were occasionally seen in and about these yards, and also that the Hocking Valley Railroad Company and the Toledo Terminal Railroad Company have tracks and shops in the vicinity of those of the defendant, and use jack blocks similar to those used by the latter company.

On Saturday morning, September 29, 1928, the plaintiff, a timekeeper in the employ of the defendant, had occasion in the performance of his duties to proceed along the south-bound main track on a speeder. This speeder consisted of a platform about four and one-half by five feet in size, mounted upon wheels similar to, but smaller than, car wheels, and was propelled by a gasoline engine. Howard had proceeded on the speeder about 500 or 600 feet south of East Broadway when the speeder was derailed, resulting in injury to him. He was taken to Mercy Hospital unconscious and was unable to state at the trial what caused the derailment, but did testify that prior thereto he was looking ahead along the track and saw no obstruction thereon. He testified also that nothing was being carried by him on the platform of the speeder. Immediately after the derailment a piece of wood about two feet in length, eight inches in width and four inches thick, was found lying between the rails of the southbound track over which plaintiff had gone, about 10 or 12 feet north of the derailed speeder. There was testimony to the effect that the platform of the speeder was “broken in 2 or 3 different places” and that some of the “pieces was broken square off, and some of them was broken on an angle, different places where they happened to hit something.” One witness said they were “fresh breaks. The speeder was straddle of the southbound west rail, one wheel was inside and one out.” It “was on its wheels and one wheel was on” Howard’s chest. The piece of wood found upon the track was known as a jack block. Jack blocks were used by the defendant for various purposes and had been used by its employees about two or three weeks prior to the occurrence in question, in repairing tracks in the vicinity of the derailment. The plaintiff testified that in this work no “particular kind” of block was used; “anything, just so it was a block.” Witnesses for the defendant said that the blocks used in the repair work were smaller in size than the one found upon the track. They testified also that a train had passed along the southbound track a short time before the Howard occurrence, and that “a track walker” had walked along this track a half hour or so theretofore and had seen no obstruction thereon of any kind. This latter testimony is not contradicted.

The plaintiff claims that these facts raise a clear inference of negligence on the part of the defendant and that the trial court erred in directing a verdict in favor of the defendant.

In our judgment the maxim res ipsa loquitur, tlius invoked, is applicable to the issues involved in the instant case, and, if the facts and circumstances disclosed by the evidence justify an inference of negligence on the part of the defendant, proximately causing injury to plaintiff, then the trial court erred in directing a verdict in favor of the defendant, and the judgment of that court should be reversed. Central Rd. Co. of N. J. v. Peluso, (C. C. A.), 286 F., 661; Baltimore & Ohio Rd. Co. v. Kast, (C. C. A.), 299 F., 419; Baltimore & Ohio Rd. Co. v. Flechtner, (C. C. A.), 300 F., 318.

The evidence shows that the yards and tracks where the derailment occurred were owned by, and in the exclusive control of, the defendant and its servants; that blocks of wood like that in evidence were used by employees of the defendant in and about the yards for various purposes, and in the repair shops there located, and according to the plaintiff had been used a short time prior to his injuries in repairing the very track over which he was proceeding at the time of the derailment; and, since, in determining the question under consideration, the evidence must be viewed most favorably to the plaintiff, our conclusion is that the facts of the occurrence warrant an inference of negligence on the part of the defendant. The plaintiff is not relieved of the burden of proof, but “the burden of evidence — that is, of explanation,” is placed thereby upon the defendant. Sweeney v. Erving, 228 U. S., 233, 33 S. Ct., 416, 57 L. Ed., 815, Ann. Cas., 1914D, 905; Kraljer v. Snare & Triest Co., (C. C. A.), 221 F., 255, 256.

The weight of the inference as well as the weight of the explanation is for the determination of the jury.

We educe the conclusion, therefore, that the judgment of the court of common pleas must be reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Williams and Richards, JJ., concur.  