Boston & MRR v. Cabana, 4052.

• Decision Date: 04 June 1945
• Docket Number: No. 4052.,4052.
• Citation: 148 F.2d 150
• Parties: BOSTON & M. R. R. v. CABANA.
• Court: U.S. Court of Appeals — First Circuit

148 F.2d 150 (1945)

BOSTON & M. R. R. v. CABANA.

No. 4052.

Circuit Court of Appeals, First Circuit.

March 23, 1945.

Writ of Certiorari Denied June 4, 1945.

Francis P. Garland and Hurlburt, Jones, Hall & Bickford, all of Boston, Mass., for appellant.

Edward S. Farmer and Brenda M. Dissel, both of Boston, Mass., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

Writ of Certiorari Denied June 4, 1945. See 65 S.Ct. 1414.

MAHONEY, Circuit Judge.

This action was brought by Edward L. Cabana against the Boston and Maine Railroad to recover damages for injuries sustained while employed as a machinist's helper under the Federal Employers' Liability Act of 1908 as amended, 35 Stat. 65, 45 U.S.C.A. §§ 51-60.

The complaint alleges that on the night of August 17, 1943, the plaintiff while at work in the defendant's roundhouse was struck and injured by a locomotive backing into the roundhouse. The first count charges the defendant with negligently failing to keep the roundhouse sufficiently lighted in consequence of which the accident occurred. The second count alleges that the accident occurred in consequence of negligence on the part of the hostler backing the locomotive into the roundhouse.

On the date of the accident, the plaintiff had been working for the defendant about six months. On that day he went to work about two P. M. and was assisting a machinist named Guess in work on a locomotive on the rails of Pit 48 in the roundhouse. They were laying out shoes and wedges so that the driving box and wheels would be in alignment to the cylinders with the piston. Pit 48 is about 100 feet long; the locomotive was about 72 feet long and was headed into the roundhouse, its front end 10 to 15 feet from the front of the pit. Sometime during the evening Guess asked for another machinist to help them in making certain adjustments which required three persons. While waiting for him they worked on the locomotive, mostly "puttering around". About 8:55 P. M. they were on the right side of the locomotive near the front wheels, and Guess ordered the plaintiff to go around the engine and be in position to hold the "tran" on the left side upon the arrival of the second machinist who was expected at any moment. The plaintiff could have gone around in front of the engine, but instead he elected to walk down the right side of the pit to a plank walk across the rails near the doors at the rear opening into the yard. As he was crossing the walkway he was struck by the tender of another locomotive backing into Pit 48 from the turntable about 96 feet away. The plaintiff was able to regain his feet but was unable to stand and immediately collapsed. He was found about eight feet from the doors on the left side of Pit 48.

The plaintiff testified that there was no light on the tender and locomotive which struck him, that he heard no signal or bell, that there were no lights at all at the rear of Pit 48 and that the only light he saw functioning was at the front of the pit. At the time of the accident this pit had 14 lighting fixtures, 7 on each side. There was evidence that several of these fixtures were out of order and in a defective condition, that the management had been advised of this and had promised to take corrective steps, and that it had failed to take any effective measures by August 17. From all the evidence offered at the trial the jury could reasonably infer that the area in which the accident occurred, both in and outside the engine house, was pitch dark.

At the close of all the evidence the defendant filed a motion for a directed verdict. The motion was denied and the case submitted to the jury. On the first count of the complaint the jury returned a verdict for the plaintiff; on the second count it returned a verdict for the defendant. From the judgment for the plaintiff on count one, the defendant has appealed on the ground that the lower court should have granted its motion for a directed verdict.

Before this court the defendant relies upon the finding of the jury with reference to the second count in the complaint that there was no negligence in the operation of the locomotive which struck the plaintiff and the dim-out regulations¹ in force at the time of the accident, and makes two contentions: first, that the defendant was guilty of no breach of duty at the time and place of injury so far as adequate lighting is concerned; and second, that the alleged insufficiency of lighting was not the proximate cause of the plaintiff's injuries.

The defendant contends that it was under no duty to light the area near the door at the back of the engine house where the plaintiff's work did not require him to go. Such an argument may prove too much since if the plaintiff had been working near the rear wheels the short route to the other side would have been the one he actually followed. On the facts here, however, he took the longer way around, and the reasonableness of that is for the jury. At the most it has to do with contributory negligence on his part, and under the Act contributory negligence is not a defense and goes merely to the mitigation of damages.

To recover under the Federal Employers' Liability Act the plaintiff must prove that the defendant was negligent and that such negligence was the proximate cause in whole or in part of the accident. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A. L.R. 967; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. "It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essense of this function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Tennant v. Peoria & P. U. Ry. Co., supra, 321 U.S. at page 35, 64 S.Ct. at page 412, 88 L.Ed. 520. The scope of our review, therefore, is limited to the inquiry whether the plaintiff's allegation of negligence is supported by any substantial evidence and whether the jury could reasonably infer that such negligence was the proximate cause of the accident in question.

There is substantial evidence which would warrant the jury's finding that the defendant negligently failed to maintain the lighting system in that area of the engine house with which we are concerned. It appears that...