Edward Passaro v. Norfolk & Western Railway Company

SOBELOFF, Chief Judge.

Plaintiff, a railroad employee, suffered a back injury on December 29, 1956, in stepping from a train onto a lump of coal, but returned to work on January 1, 1957. On the latter date, while trying to “throw” a track switch, which was unusually difficult to move, he felt an intense back pain and was taken to a hospital.

A complaint was filed under the Federal Employer’s Liability Act, 45 U.S.C.A. Sec. 51 et seq., alleging the negligent maintenance of the switch on January 1. There is no claim for injuries occurring on December 29.

An issue at the trial was whether the…