Ackley v. Chicago and North Western Transp. Co.

• Decision Date: 16 July 1987
• Docket Number: No. 86-5168,86-5168
• Parties: Jerry ACKLEY, Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 263

820 F.2d 263

Jerry ACKLEY, Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Appellee.

No. 86-5168.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1986.

Decided June 2, 1987.

Rehearing Denied July 16, 1987.

Gary K. Wood, Minneapolis, Minn., for appellant.

Arlo Sommervold, Sioux Falls, S.D., for appellee.

Before LAY, Chief Judge, WOLLMAN, Circuit Judge, and HANSEN, ^* District Judge.

LAY, Chief Judge.

Jerry Ackley appeals from the district court's order denying his motion for a new trial after a jury verdict for the defendant railroad. Ackley attacks the court's jury instructions regarding contributory negligence, assumption of risk, and an employer's duty under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60 (1982) (FELA), to provide a reasonably safe place to work. We reverse and remand for a new trial.

Facts

On November 30, 1982, Ackley was injured on the job at Chicago and North Western Railroad (Railroad) as he was winterizing windows at the roundhouse in Huron, South Dakota. Ackley and a co-worker, Dean Remington, had placed a scaffold between beams approximately twenty feet above ground in order to reach the windows. The men used a ladder that was actually the top portion of a straight, aluminum extension ladder to reach the scaffold. This section of the extension ladder was not equipped with rubberized safety shoes. Railroad safety rules require straight ladders to be equipped with safety shoes. Ackley's foreman King knew of this rule yet did not object to the use of the ladder. The bottom portion of the ladder was never located, and there is no evidence indicating when or by whom the bottom portion was removed. Ackley testified that he had used the ladder on numerous occasions and there were no other ladders available for the job except two that were too short to reach the scaffold. Remington testified that he too had used the ladder in other jobs at the roundhouse.

On the day of the accident, Ackley set the ladder upright on the concrete floor and climbed up to the scaffold. Remington held the ladder as Ackley climbed. A rope was attached to the top of the ladder, but Ackley did not lash the ladder to a nearby pipe despite a railroad rule requiring straight ladders to be lashed under certain conditions. ¹ The men used the rope to raise supplies and tools to the scaffold. Ackley stepped from the ladder to the scaffold and began working on the windows. Remington then left the room to locate more supplies. In need of more plywood for the job, Ackley climbed down the ladder a few moments later with no one holding it from the bottom. The ladder slipped, and Ackley fell to the concrete floor, sustaining back, hip, and hand injuries.

Ackley sued the Railroad under the FELA, alleging negligence in furnishing unsafe working conditions and equipment that caused his injuries. The Railroad denied any negligence and claimed that Ackley's contributory negligence caused the accident and the injuries. In a general verdict, the jury found for the defendant, and the court ² overruled Ackley's motion for a new trial. He now appeals.

Discussion

Ackley first argues that the court erred in instructing the jury regarding contributory negligence ³ and assumption of risk. We need not consider this claim because, as the Railroad correctly points out, a general verdict entered for the defendant forecloses the possibility that the jury found contributory negligence on Ackley's part. Any contributory negligence would mitigate, not eliminate, Ackley's damages. Furthermore, the jury was told that assumption of risk does not bar a plaintiff's recovery under the FELA. Under these circumstances, the jury verdict must be read as finding no negligence on behalf of the Railroad.

We therefore examine solely Ackley's claim that the trial court erroneously instructed the jury regarding the Railroad's duties under the FELA. Ackley maintains that Instruction XVI prejudicially diminished the duty of care that the Railroad owes to its employees under the FELA. Instruction XVI stated: "The Defendant has a right to assume that its employees will exercise reasonable care for their own safety and that they will not disobey safety rules and practices." Such a general instruction appears innocuous on its face; however, in a FELA action involving the factual claims made here, we find prejudicial error in the instruction.

In Rogers v. Missouri Pac. R.R., 352 U.S. 500, 507-08, 77 S.Ct. 443, 448-50, 1 L.Ed.2d 493 (1956) (footnotes omitted), the Supreme Court described the effect of the FELA on an employer's common law duties:

The law [FELA] was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference. ⁴

Congress intended the FELA to be a broad, remedial statute, and courts have adopted a standard of liberal construction to facilitate Congress' objectives. Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029, 93 L.Ed. 1282 (1949). ⁵

An employer's duty of care in a FELA action turns in a general sense on the reasonable foreseeability of harm. Gallick v. Baltimore & O. R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963). The employer's conduct is measured by the degree of care that persons of ordinary, reasonable prudence would use under similar circumstances and by what these same persons would anticipate as resulting from a particular condition. Id. at 118, 83 S.Ct. at 665; see also Davis v. Burlington N., Inc., 541 F.2d 182, 185 (8th Cir.1976). At the same time, the FELA provides that the employer's duties are nondelegable and become more imperative as the risk to the employee increases. Bailey, 319 U.S. at 352-53, 63 S.Ct. at 1063-64. This continuous duty to provide a reasonably safe place to work, while measured by foreseeability standards, is broader under the statute than a general duty of due care. Ragsdell v. Southern Pac. Transp., 688 F.2d at 1283. ⁶

The Supreme Court has emphasized the jury's role in determining whether an employer has breached its duties under the FELA. Rogers, 352 U.S. at 506-07, 77 S.Ct. at 448-49; see also Borough v. Duluth, M. & I.R. Ry., 762 F.2d 66, 67 n. 1 (8th Cir.1985) (directed verdict on issue of employer's negligence in FELA action appropriate only in exceptional cases). The jury is required to weigh myriad factors, including the nature of the task and its hazards, to decide whether an employer has furnished its employee with a reasonably safe place to work. Bailey, 319 U.S. at 353-54, 63 S.Ct. at 1064-65. This preference for sending questions of negligence to the jury underscores the importance of instructions accurately depicting an employer's duty of care under the statute. Instruction XVI, we believe, prejudicially detracts from this duty.

There is no question that an employee in a FELA action has a duty to use reasonable care in the workplace. Kurn v. Stanfield, 111 F.2d 469, 473 (8th Cir.1940). The Railroad argues that this general duty of ordinary care perforce creates the right to assume that its employees will exercise due care in the workplace and obey safety rules.

The right to assume that others will exercise ordinary care derives from the corresponding duty of due care imposed by the law on every person. W. Prosser & W. Keeton, supra, Sec. 1, ch. 1, at 4. It is often said that one may assume that others will act lawfully and carefully, and we accept this as a general principle. But the right to assume another's lawful or careful behavior sometimes reflects neither reality nor the facts in a case:

As a broad generalization, people probably do obey the law, so that unlawful conduct is more or less deviational and unusual. In many situations, therefore, the assumption mentioned no more than reflects the real factual probabilities as to what another person's conduct will be. If the assumption is made only in cases where it reflects the facts, it is useful and proper. But in this connection, two things must be noted. The first is that such an assumption does not always correspond to the facts. It does not in situations where a law is generally disobeyed. It does not where the facts in a specific case would show to a reasonable person in the actor's position that another person will probably disobey the law this time. * * * The second thing to be noted is that the assumption has often been applied rather mechanically, without any real regard to the factual probabilities of the situation. Perhaps the most significant trend that has taken place in this particular field, in recent years, has been the increasing liberalization in allowing the wrongs of other people to be regarded as foreseeable where the facts warrant that conclusion if they are looked at naturally and not through the lens of some artificial archaic notion.

3 F. Harper, F. James Jr. & O. Gray, The Law of Torts, Sec. 16.12, at 495-96 (2d ed. 1986) (footnotes omitted) (emphasis supplied); see also Restatement (Second) of Torts Sec. 302A and comment c (1965). As the risk of harm becomes more foreseeable, the duty to foresee that risk increases and the right to assume due care correspondingly decreases. What the Railroad is entitled to assume about its employees' behavior, therefore, bears directly on the question of its own duties. See Atchison, T. & S.F....