318 U.S. 54 (1943), 296, Tiller v. Atlantic Coast Line Railroad Co.

Docket NºNo. 296
Citation318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610
Party NameTiller v. Atlantic Coast Line Railroad Co.
Case DateFebruary 01, 1943
CourtUnited States Supreme Court

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318 U.S. 54 (1943)

63 S.Ct. 444, 87 L.Ed. 610



Atlantic Coast Line Railroad Co.

No. 296

United States Supreme Court

Feb. 1, 1943

Argued January 4, 1943




1. The 1939 amendment of the Federal Employers' Liability Act, which provides that, in an action against a common carrier under the Act to recover damages for injury or death of an employee,

such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,

obliterated from that law every vestige of the doctrine of assumption of risk. P. 68.

2. The rule of decision in cases under the Act as amended is the doctrine of comparative negligence, which permits the jury to weigh the fault of the injured employee and to compare it with the negligence of the employer, and thereupon to do justice to both. P. 65.

3. The question of the negligence of the employer is to be determined by the general rule which defines negligence as the lack of due care under the circumstances, or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances, or doing what such a person under the circumstances would not have

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done. The standard of care must be commensurate to the dangers of the employment. P. 67.

4. Under the Act as amended, no case is to be withheld from a jury on any theory of assumption of risk, and questions of negligence should be submitted to the jury with appropriate instructions. P. 67.

5. Upon the evidence in this case under the Federal Employers' Liability Act, the question of negligence on the part of the railroad and on the part of the employee should have been submitted to the jury. P. 68.

123 F.2d 420 reversed.

Certiorari, 317 U.S. 610, to review the affirmance of a judgment on a directed verdict for the defendant in a suit under the Federal Employers' Liability Act.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

The petitioner's husband and intestate, John Lewis Tiller, was a policeman for the respondent railroad. Among his duties was that of inspecting the seals on cars in railroad yards to make sure that no one had tampered with them. He had held this position for some years, was familiar with the yard, and was aware, in the words of the court below, that respondent's employees

are instructed that they must watch out for the movement of the trains, as no employee watches out for them, and no lights are used at night on the head end of backup movements except when an employee is placed at the back end with a lantern to protect a road crossing.

The Circuit Court of Appeals found that there was evidence sufficient to sustain the following account of the tragedy:

On the night of March 20, 1940, Tiller was standing between two tracks in the respondent's switch yards, tracks which allowed him three feet, seven and one-half inches of standing space when trains were moving on both sides.

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The night was dark,1 and the yard was unlighted. Tiller, using a flashlight for the purpose, was inspecting the seals of the train moving slowly on one track, when suddenly he was hit and killed by the rear car of a train backing in the opposite direction on the other track. The rear of the train which killed Tiller was unlighted, although a brakeman with a lantern was riding on the back step on the side away from Tiller. The bell was ringing on the engine, but both trains were moving, and the Circuit Court found that it was "probable that Tiller did not hear cars approaching" from behind him. No special signal of warning was given.

Petitioner brought this suit to recover damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. The complaint alleged negligent operation of the car which struck defendant and failure to provide a reasonably safe place to work. Respondent denied [63 S.Ct. 446] negligence, pleaded contributory negligence on the part of the defendant, and set up as a separate defense that the deceased had assumed all the risks "normally and necessarily incident to his employment." After the plaintiff's evidence had been heard, the defendant moved for a directed verdict on the grounds (a) that the evidence disclosed no actionable negligence and (b) that the cause of the death was speculative and conjectural. The motion was granted, judgment was accordingly entered for the defendant, and the Circuit Court of Appeals, interpreting the decision of the district court as resting on a conclusion that the evidence showed no negligence, affirmed. 128 F.2d 420. This result was based on a holding that the deceased had assumed the risk of his position, and that therefore there was no duty owing to him by respondent. We granted certiorari, 317 U.S. 610, because of the important question involved

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in the Circuit Court of Appeals' interpretation of the scope and effect of the 1939 amendment to the Federal Employers' Liability Act, 53 Stat. 1404, 45 U.S.C. § 54. The amendment provides that an

employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

The Circuit Court distinguished between assumption of risk as a defense by employers against the consequence of their own negligence and assumption of risk as negating any conclusion that negligence existed at all. The court reasoned that if, for example, the respondent had negligently failed to provide a workman with a sound tool, and he was thereby injured, it could not, under the amendment, claim that he had assumed the risk of using the defective implement, but that, if a workman were injured in the ordinary course of his work, as in such a switching operation as this, the assumption of risk might still be relied upon to prove that the respondent had no duty to protect him from accustomed danger. The court rejected petitioner's argument that, since the doctrine of assumption of risk had been abolished,

the carrier can no longer interpose it as a shield against the consequences of its neglect, and hence is liable for injuries to its employees in its railroad yards or elsewhere, unless it takes precautions for their safety commensurate with the danger that they are likely to encounter.

In rejecting this argument, the court below put the core of its decision in these words:

The conclusion is inescapable that Congress did not intend to enlarge the obligation of carriers to look out for the safety of their men when exposed to the ordinary risks of the business, and that, in circumstances other than those provided for in the amended section of the statute, the doctrine of the assumption of the risk must be given its accustomed weight. [Italics added.]

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We find it unnecessary to consider whether there is any merit in such a conceptual distinction between aspects of assumption of risk which seem functionally so identical, and hence we need not pause over the cases cited by the court below, all decided before the 1939 amendment, which treat assumption of risk sometimes as a defense to negligence, sometimes as the equivalent to non-negligence.2 We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to [63 S.Ct. 447] "non-negligence." As this Court said in facing the hazy margin between negligence and assumption of risk as involved in the Safety Appliance Act of 1893, "[u]nless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name,"3 and no such result can be permitted here.

Perhaps the nature of the present problem can best be seen against the background of one hundred years of master-servant tort doctrine. Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning

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of this period to insulate the employer as much as possible from bearing the "human overhead" which is an inevitable part of the cost -- to someone -- of the doing of industrialized business.4 The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.5 The assumption of risk doctrine, for example, was attributed by this Court to

a rule of public policy, inasmuch as an opposite doctrine would not only subject employers to considerable and often ruinous responsibilities, thereby embarrassing all branches of business,

but would also encourage carelessness on the part of the employee.6 In the

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pursuit of its general objective, the common law took many forms, and developed many doctrines. One of the first was the fellow servant-assumption of risk rule which originated in Priestly v. Fowler.7 In Priestly v. Fowler, the Court said,

The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and, in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.

As English courts lived with the assumption of risk doctrine, they discovered that the theory they had created had become morally unacceptable, but of such legal force that it could not be repudiated.8 The English sought to eliminate the fellow [63 S.Ct. 448] servant rule, which placed the burden of an employee's negligence as it affected another...

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