Atlantic Coast Line R. Co. v. Dixon

• Decision Date: 19 June 1951
• Docket Number: No. 13469.,13469.
• Citation: 189 F.2d 525
• Parties: ATLANTIC COAST LINE R. CO. v. DIXON.
• Court: U.S. Court of Appeals — Fifth Circuit

189 F.2d 525 (1951)

ATLANTIC COAST LINE R. CO. v. DIXON.

No. 13469.

United States Court of Appeals Fifth Circuit.

May 25, 1951.

Rehearing Denied June 19, 1951.

Larry E. Pedrick, John W. Bennett, Waycross, Ga., Charles Cook Howell, Wilmington, N. C., for appellant.

J. S. Dorsey Blalock, E. O. Blalock, Waycross, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

STRUM, Circuit Judge.

This appeal is from a judgment recovered by plaintiff below, suing under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries resulting from an electric shock received by plaintiff when he mistakenly plugged the connection of a portable electric light cable into the outlet of a power circuit carrying a 440 volt current, instead of, as he had intended, into a lighting circuit carrying only 110 volts, the outlet of which was located some 26 feet away.

Plaintiff asserts that the defendant railroad company failed to exercise due care to furnish him a reasonably safe place in which to work, and with reasonably safe tools and appliances, specifically in failing to notify plaintiff of the presence and dangerous character of the power circuit, in failing to turn off the current when the circuit was not in use, in failing to maintain guards to prevent accidental contact with the power circuit, and in failing to furnish sufficient light where plaintiff was required to work.

The Federal Employers' Liability Act does not make the employer an insurer of the safety of its employees while they are on duty. The employer is not held to an absolute responsibility for the reasonably safe condition of the place, tools and appliances, but only to the duty of exercising reasonable care to that end, the degree of care being commensurate with the danger reasonable to be anticipated. Baltimore & O. S. W. R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566. The basis of the employer's liability is its negligence, not the mere fact that the injury occurred. Except as otherwise provided in the Act, liability is determined by common law principles which define negligence as lack of due care in the circumstances, that is, the doing of acts which a reasonably prudent person would not have done, or the failure to do what a reasonably prudent person would have done in the circumstances, or both. Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; 87 L.Ed. 610; Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213, 217.

The employer's duty to its employees is to use reasonable care and prudence to the end that the place in which they are required to work, and the appliances with which they work, are reasonably suitable and safe for the purpose, and in the circumstances, in which they are to be used. The test is not whether the tools to be used and the place in which the work is to be performed are absolutely safe, nor whether the employer knew the same to be unsafe, but whether or not the employer has exercised reasonable care and diligence to make them safe. Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062; Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L.Ed. 612; Washington & G. R. Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 235; Baltimore & O. S. W. R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566; Yazoo & M. V. R. Co. v. Mullins, 249 U. S. 531, 39 S.Ct. 368, 63 L.Ed. 754; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213; Aqua System v. Kodakoski, 5 Cir., 88 F.2d 395, 398.

It is of course the duty of an employee to exercise reasonable and ordinary care for his own safety. If the employee's negligence was the sole proximate cause of his injury, he can not recover. If both employer and employee are guilty of negligence, the employee may recover, but his damages will be diminished in proportion to the amount of negligence attributable to the employee. Louisville & N. R. Co. v. Davis, 6 Cir., 75 F.2d 849; Chesapeake & O. Ry. Co. v....