Atlantic Coast Line R. Co. v. Tiller, 5217.

• Decision Date: 15 May 1944
• Docket Number: No. 5217.,5217.
• Citation: 142 F.2d 718
• Parties: ATLANTIC COAST LINE R. CO. v. TILLER.
• Court: U.S. Court of Appeals — Fourth Circuit

142 F.2d 718 (1944)

ATLANTIC COAST LINE R. CO. v. TILLER.

No. 5217.

Circuit Court of Appeals, Fourth Circuit.

May 15, 1944.

Collins Denny, Jr., of Richmond, Va. (J. M. Townsend, of Petersburg, Va., on the brief) for appellant.

J. Vaughan Gary, of Richmond, Va. (Dave E. Satterfield, Jr., of Richmond, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This case, now before us for the second time, relates to the accidental death of John Lewis Tiller, a sergeant of railroad police, while engaged in the performance of his duties in the Clopton freight yard of the Atlantic Coast Line Railroad Company near Richmond. In our former opinion (128 F.2d 420) we affirmed the action of the District Court at the first trial in directing a verdict for the defendant carrier on the ground that the evidence disclosed no negligence on its part. We recognized that the common law defense of assumption of the risk was eliminated in cases under the Federal Employers' Liability Act when § 4 of the Act was amended in 1939, 45 U.S.C.A. § 54, so as to provide that in any action brought under the Act to recover against a carrier for the injury or death of an employee of the carrier, such employee shall not be held to have assumed the risk of his employment where his injury or death resulted in whole or in part from the negligence of any of the officers, agents or employees of the carrier. But we concluded that no recovery from the carrier could be had because the evidence did not indicate any negligence on its part but rather that the accident resulted from the negligence of the deceased or from his exposure to the risks which are inherent in the business of railroading notwithstanding the performance by the carrier of its duty to its men. In so doing we interpreted the amended statute to mean that while an employee of a carrier does not assume the risk of his employment in any case where injury or death results from the carrier's negligence, he does assume the risk of injury which results not from his employer's negligence but from the intrinsic nature of his dangerous occupation.

No one saw the accident but the evidence at the first trial warranted the inference that the accident occurred under the following circumstances: Every evening the carrier operated a freight train from Richmond to the South which was made up at the Clopton Yard. Tiller had been a member of the Railroad Police Force for sixteen years and for a number of years had been assigned to the protection of this train. He was engaged in this work about 7 P.M. on March 20, 1940 when he was hit by the head car of three cars that were being pushed in a northerly direction by the road engine in a slow back-up movement in the course of the shifting operations. The tracks ran north and south at the point of the accident and Tiller was standing between two of the tracks or on the more westerly of the two tracks, while using a flashlight to examine the seals on the doors of the cars on the track to the east without observing that the three cars in the back-up movement were approaching him on the track to the west. The night was dark and the yard was unlighted. There was no light on the head car of the back-up movement except that a brakeman holding a lighted lantern was riding on the step at the northwest corner of the car in order to protect a cross highway known as Clopton Road which the cars were about to cross. The bell of the engine was ringing.

The shifting of cars in the freight yard was a necessary and customary operation in the make up of the train; and the carrier's employees had been instructed that they must watch out for the movement of the trains as no employee watches out for them and no lights are used at night on the head end of back-up movements except when an employee is placed at the back end with a lantern to protect a road crossing. In regard to this practice it was expressly stipulated at the second trial in the District Court, now under review, that both in their large and most active yards and in their smaller and less active yards railroads make it a practice not only to pull cars with the locomotive in the lead position but also to push cars with the locomotive in the rear position of the movement. When cars are thus pushed it is not the practice of railroads to place on the lead end of the movement a headlight similar to that carried by a locomotive or otherwise to light the lead end of the back end movement. Sometimes for a special purpose a man carrying a lantern may ride on the lead end of the movement. Cars are not only pushed with the engine running forward but also with the engine running in reverse.

Upon our affirmance of the judgment of the District Court at the first trial, the Supreme Court granted certiorari and reversed, Tiller v. Atlantic Coast Line, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A. L.R. 967. The court made it clear (318 U.S. at page 58, 63 S.Ct. at page 446, 87 L.Ed. 610) that "every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to `non-negligence'"; and the court held (318 U.S. at page 68, 63 S.Ct. at page 451, 87 L.Ed. 610) without specifying the particulars wherein the defendant had failed to perform its duty, that upon the facts recited "the question of negligence on the part of the railroad and on the part of the employee should have been submitted to the jury."

Since the evidence at the second trial in respect to the movement of the cars was substantially the same as at the first, this decision required the District Judge notwithstanding the opposition of the defendant to submit the case to the jury. Our duty upon this appeal to affirm the judgment of $22,500 for the plaintiff based upon the verdict would have been equally clear if the plaintiff had been content at the second trial to rest upon the legal theory outlined in the opinion of the Supreme Court; but the plaintiff amended the complaint by specifying a new item of negligence which was submitted to the jury as an alternative ground for recovery. Since the verdict for the plaintiff was general and did not specify the ground on which it rested, it becomes necessary for us to determine whether there was sufficient evidence to justify the submission of this new theory to the jury over the defendant's objection.

The plaintiff was permitted to amend the complaint at the second trial so as to add the allegation that the carrier had violated the provisions of the Federal Boiler Inspection Act, 45 U.S.C.A. § 22 to § 34, by using a locomotive which was in improper condition and unsafe to operate in that it did not have proper lights between sunset and sunrise, as prescribed by the rules of the Interstate Commerce Commission promulgated pursuant to the statutes. One of these rules makes the following provision:

"131. Locomotives used in Yard Service. — Each locomotive used in yard service between sunset and sunrise shall have two lights, one located on the front of the locomotive and one on the rear, each of which shall enable a person in the cab of the locomotive under the conditions, including visual capacity, set forth in rule 129, to see a dark object such as there described for a distance of at least 300 feet ahead and in front of such headlight; and such headlights must be maintained in good condition."

The road engine that was pushing the cars that injured Tiller did not have such a light on its rear end as is described in the rule but only a small electric bulb situated on the top of the tender below the top of the cars that were being pushed.

The defendant objected to...