Atlantic Coast Line R. Co. v. Burkett, No. 13681.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: McCORD, RUSSELL and RIVES, Circuit
• Citation: 192 F.2d 941
• Parties: ATLANTIC COAST LINE R. CO. v. BURKETT.
• Docket Number: No. 13681.
• Decision Date: 28 December 1951

192 F.2d 941 (1951)

ATLANTIC COAST LINE R. CO.
v.
BURKETT.

No. 13681.

United States Court of Appeals Fifth Circuit.

November 16, 1951.

As Modified on Denial of Rehearing December 28, 1951.

192 F.2d 942

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

E. O. Blalock, Waycross, Ga., for appellee.

Before McCORD, RUSSELL and RIVES, Circuit Judges.

192 F.2d 943

RIVES, Circuit Judge.

Under the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq., plaintiff-appellee secured a verdict against defendant-appellant in the sum of $25,000.00 damages for personal injuries. The only alleged errors relate to the court's charge to the jury and to its refusal to hold the verdict excessive.

Plaintiff was a helper to car repairer Gene Cannon. Cannon instructed him to help carry a rail weighing about 300 pounds, and plaintiff was at the lead end of such rail. Plaintiff claimed that the rail was so heavy that he could not get it on his shoulder; that he had to bring it around a post, and that it was necessary for him to walk backwards; that when he had taken three or four steps backwards he fell over a pile of scrap iron and other debris and was severely and permanently injured.

As grounds of negligence, the plaintiff claimed that Cannon suddenly, violently and without warning pushed said steel rail, and also that defendant allowed the scrap iron and debris to collect in its railroad yards and failed to use due care to furnish plaintiff a reasonably safe place to work.

Defendant denied that it or its employee Cannon was negligent and claimed that it was the duty of the plaintiff to have removed the scrap iron and debris over which he fell, and that the cause of his fall was his failure to perform that duty and his negligence in walking backward, paying no attention to where he was going.

Appellant's first specification of error is as follows: "The trial judge erred in charging the jury, over timely exception of defendant, that as a matter of law the plaintiff in this case did not assume any risk incident to his employment, because there was no issue made by the pleadings or evidence with respect to any assumption of risk and the injection of this issue would tend to lead the jury to believe that the plaintiff might not be required under the law to exercise ordinary care that would be placed upon him by all the circumstances of the case, and such charge was calculated to confuse the jury to the prejudice of the defendant."

Appellant of course concedes that it was held in Tiller v. Atlantic Coast Line Railroad Company, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, that the effect of the 1939 Amendment to the Federal Employers' Liability Act was to obliterate from the law every vestige of the doctrine of assumption of risk and to prevent any reliance on the doctrine for the purpose of establishing absence of negligence on the part of the employer.

The appellant puts strong reliance on the case of Ellis v. Union Pac. Railroad Co., 148 Neb. 515, 27 N.W.2d 921, 926 not as a controlling precedent, but because its reasoning is persuasive. The charge under consideration in that case was held by the Nebraska Supreme Court to be not only abstract, but also prejudicially erroneous because, "It did not intelligently contain the qualification that the risks of his employment, which plaintiff could not be held to have assumed, were only those risks caused by or resulting in whole or in part from defendant's negligence." In the case at bar, a subsequent part of the court's oral charge did contain that qualification: "I charge you further, gentlemen of the jury, that in any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier."

Other parts of the charge emphasized the necessity of proof of the defendant's negligence as a prerequisite to a verdict for the plaintiff.

Under the pleadings and evidence in this case, we think that the trial judge was justified in thinking that...