336 U.S. 53 (1949), 53, Wilkerson v. McCarthy

Docket Nº:No. 53
Citation:336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497
Party Name:Wilkerson v. McCarthy
Case Date:January 31, 1949
Court:United States Supreme Court

Page 53

336 U.S. 53 (1949)

69 S.Ct. 413, 93 L.Ed. 497




No. 53

United States Supreme Court

Jan. 31, 1949

Argued December 6, 1948



1. In this action under the Federal Employers' Liability Act, there was evidence (detailed in the opinion) which would support a jury finding of negligence on the part of the defendants, and it was error for the trial court to direct a verdict against the plaintiff. Pp. 54-61, 63-64.

2. In determining whether there is sufficient evidence to submit an issue of negligence to the jury, it is necessary to look only to the evidence and reasonable inferences therefrom which tend to support the case of the litigant against whom a peremptory instruction has been given. P. 57.

3. Under the Federal Employers' Liability Act, contributory negligence of the plaintiff does not bar recovery for an injury which was "in part" the result of the defendant's negligence, but the damages in such case "shall be diminished by the jury in proportion to the amount of negligence attributable" to the plaintiff. P. 61.

4. The Federal Employers' Liability Act does not make the railroad an absolute insurer of the safety of its employees, but imposes liability only for negligence. P. 61.

5. The issue of negligence under the Act is to be determined by the jury according to whether an employer's conduct measures up to what a reasonable and prudent person would have done under the same circumstances. P. 61.

6. The employer is liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances, having in mind that the standard of care must be commensurate to the dangers of the business. P. 61.

7. The assumption that, where the issue of negligence under the Act is left to the jury, railroads practically are made insurers of the safety of their employees is inadmissible, since courts should not assume that, in determining these questions of negligence, juries will fall short of a fair performance of their constitutional function. Pp. 61-63.

___ Utah ___, 187 P.2d 188, reversed.

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In an action brought by petitioner under the Federal Employers' Liability Act, to recover damages for personal injuries, the trial court directed a verdict for the defendants. The State Supreme Court affirmed. ___ Utah ___, 187 P.2d 188. This Court granted certiorari. 335 U.S. 807. Reversed, p. 64.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

The petitioner, a railroad switchman, was injured while performing duties as an employee of respondents in their railroad coach yard at Denver, Colorado. He brought this action for damages under the Federal Employers' Liability Act.1

The complaint alleged that, in the performance of his duties in the railroad yard, it became necessary for him to walk over a wheel-pit on a narrow boardway, and that, due to negligence of respondents, petitioner fell into the pit and suffered grievous personal injuries. The complaint further alleged that respondents had failed to furnish him a safe place to work in several detailed particulars, namely that the pit boardway (1) was not firmly set, (2) was not securely attached, and, (3) although only about 20 inches wide, the boardway had been permitted to become greasy, oily, and slippery, thereby causing petitioner to lose his balance, slip, and fall into the pit.

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The respondents, in their answer to this complaint, admitted the existence of the pit and petitioner's injuries as a result of falling into it. They denied, however, that the injury resulted from the railroad's negligence, charging that plaintiff's own negligence was the sole proximate cause of his injuries. On motion of the railroad, the trial judge directed the jury to return a verdict in its favor. The Supreme Court of Utah affirmed, one judge dissenting. ___ Utah ___, 187 P.2d 188.

The opinion of the Utah Supreme Court strongly indicated, as the dissenting judge pointed out, that its finding of an absence of negligence on the part of the railroad rested on that court's independent resolution of conflicting testimony. This Court has previously held in many cases that, where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on those issues. See, e.g., Lavender v. Kurn, 327 U.S. 645, 652-653; Bailey v. Central Vermont Ry., 319 U.S. 350, 354; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, and see Brady v. Southern R. Co., 320 U.S. 476, 479. It was because of the importance of preserving for litigants in FELA cases their right to a jury trial that we granted certiorari in this case.

The evidence showed the following facts without dispute:

Petitioner fell into the pit July 26, 1945. The pit, constructed in 1942, ran approximately four feet east and west underneath three or more parallel tracks which crossed the pit from north to south. The pit was 11 feet deep and 4 feet 2 1/2 inches wide, with cement walls and floor. Car wheels in need of repair were brought to the pit, lowered into it, there repaired, and then lifted from the pit for return to use. When not in use, the pit was kept solidly covered with heavy boards. These

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boards were used as a walkway by all employees. When the pit was in use, the cover boards were removed except one 75 pound "permanent board," 22 inches wide and 4 feet 2 1/2 inches long. While the solid covering was off, this "permanent board," built to fit snugly and firmly, was [69 S.Ct. 415] unquestionably used as a walkway by all employees up to about May 1, 1945.

On this latter date, the railroad put up "safety chains" fastened to guard posts, enclosing 16 1/2 feet of the pit on its north, south and west sides. The posts, 42 inches high, fitted into tubes imbedded in the ground, the tubes being larger than the posts -- enough larger to allow the posts to work freely. The chains, attached two inches from the top of the posts, were to be kept up while the pit was in use and taken down when the pit was not in use. They were up when plaintiff slipped from the "permanent board" into the pit. At that time, a tourist car was standing over the pit on track "23 1/2." This track "23 1/2" was east of the two east chain posts, its west rail being about 36 inches, and the tourist car overhang about 7 inches from the two east chain supporting posts.2 The floor of the "overhang" was about 51 inches above the ground, or 9 inches above the top of the posts, thus allowing an unobstructed clearance of 51 inches under the overhang. The "permanent board" was inside the chain enclosure, the board's east side being about 9 1/2 inches from the two eastern chain posts. Despite the proximity of the tourist car to the posts, there was sufficient space east of each chain post so that pit workers had access to and used the board as a walkway. One of the

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defendant's witnesses, a very large man weighing 250 pounds, passed through it, though, according to his testimony, with "very bad discomfort." Petitioner was a much smaller man, weighing 145 pounds, and it was by passing between one of these posts and the tourist car that petitioner reached the "permanent board" which bridged the pit. Oil from wheels would sometimes accumulate at the bottom of the pit, and, as stated by the Utah Supreme Court, the "permanent board" was "almost certain to become greasy or oily" from use by the pit men.

Neither before nor after the chains were put up, had the railroad ever forbidden pit workers or any other workers to walk across the pit on the "permanent board." Neither written rules nor spoken instructions had forbidden any employees to use the board. And witnesses for both sides testified that pit workers were supposed to, and did, continue to use the board as a walkway after the chains and posts were installed. The Utah Supreme Court nevertheless held that erection of the chain and post enclosure was itself the equivalent of company orders that no employees other than pit workers should walk across the permanent board when the chains were up. And the Utah Supreme Court also concluded that there was insufficient evidence to authorize a jury finding that employees generally, as well as pit workers, had continued their longstanding and open practice of crossing the pit on the permanent board between the time the chains were put up and the time petitioner was injured.

It is the established rule that, in passing upon whether there is sufficient evidence to submit an issue to the jury, we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given. Viewing the evidence here in that way, it was sufficient to show the following:

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Switchmen and other employees, just as pit workers, continued to use the permanent board to walk across the pit after the chains were put up as they had used it before. Petitioner3 and another witness4

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employed on work around the pit, testified positively that such practice continued. It is true that witnesses for the respondents testified that, after the chains were put up, only the car men, in removing and

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applying wheels, used the board "to walk from one side of the pit to another. . . ." Thus, the conflict as to continued use of the board as a walkway after erection of the chains was whether the pit workers alone continued to use it as a walkway, or whether employees generally so used it. While this left only a very narrow conflict in the evidence, it was for the jury, not the court, to resolve the conflict.

It was only as a result of its inappropriate resolution of this conflicting evidence that the State Supreme Court affirmed the action of the trial court in directing the verdict. Following its determination of fact,...

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