Atlantic Coast Line R. Co. v. Craven

• Decision Date: 09 November 1950
• Docket Number: No. 6125.,6125.
• Citation: 185 F.2d 176
• Parties: ATLANTIC COAST LINE R. CO. v. CRAVEN.
• Court: U.S. Court of Appeals — Fourth Circuit

185 F.2d 176 (1950)

ATLANTIC COAST LINE R. CO. v. CRAVEN.

No. 6125.

United States Court of Appeals, Fourth Circuit.

Argued October 5, 1950.

Decided November 9, 1950.

Collins Denny, Jr., Richmond, Va. (J. M. Townsend, Petersburg, Va., and Denny, Valentine & Davenport, Richmond, Va., on brief) for appellant.

J. Segar Gravatt, Blackstone, Va., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This civil action was brought in the District Court of the United States for the Eastern District of Virginia under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., hereinafter called the Act. The complaint alleged that plaintiff, Craven, had lost his leg through the negligence of the railroad. The jury returned a verdict for Craven and assessed damages at $28,000. A motion to set aside the verdict or to grant a new trial was denied, and judgment was entered on the verdict. Defendant, Atlantic Coast Line Railroad Company, has appealed.

Plaintiff entered the service of defendant railroad in April, 1942. His injuries occurred at 12:45 P. M. on March 18, 1943. He had left Richmond, Virginia, early that morning as a brakeman on a freight train, in charge of Conductor J. I. Sargent, bound for the South Rocky Mount, North Carolina, yards. These yards are very extensive, being some two or three miles in length, and are always a scene of great activity. A group of buildings is the focal point of the yards, including the Yard Office, the restaurant, and the washrooms used by the railroad's employees.

These buildings are separated from South Main Street by five tracks, two of which are main line tracks. Another, that nearest the building, leads to a ladder frequently used in the classification of cars. At this point, there is heavy traffic arising both from the passage of through trains and from the switching and classification activities of the yard. Across these tracks from the yard lie the restaurants and other attractions of South Rocky Mount. In 1942, to protect certain young ladies from getting their feet muddy, the Yardmaster had a walkway built up across these tracks and level with them. This walkway provided the best passage over the tracks in the vicinity, so that the railroad's employees were accustomed to use this walk in pursuance of their duties.

When the train on which the plaintiff was serving came into this yard, the conductor alighted at the yard office to make his report; the train proceeded on to the proper place to deposit its cars. It was then the duty of the engineer and the plaintiff brakeman to put the engine away, which was done about twenty minutes before the accident occurred. Plaintiff then endeavored to seek out the conductor to report the time of completion of his duties. It was his understanding that this should be done as soon after the completion of a trip as possible and the rules of the railroad, although somewhat ambiguous, could readily leave plaintiff with this impression. When he worked under Conductor Sargent, plaintiff always went immediately to the yard office to find him. When Sargent was not there, plaintiff usually crossed the tracks onto Main Street, where Sargent could normally be found. Failing in this, plaintiff would make his report later when they happened to meet in South Rocky Mount, or when they reported for the return trip to Richmond. About half the time this report to Sargent was at the yard office or over on South Main Street; the other half, when plaintiff reported for the return trip. This was the custom followed by many of the other train crews.

On the day in question, Sargent was not in the yard office. Plaintiff crossed the tracks to South Main Street; but neither was Sargent there. So plaintiff crossed back to the yard for purpose of washing up in the railroad's washroom. He found his way blocked by a long "cut" of cars slowly being moved north on that track nearest the washroom. This was not unusual; passage here was frequently blocked for anywhere from two to fifteen minutes. Although encumbered by a lantern and a lunchbag, plaintiff mounted a gondola car of the New York Central Railroad by the side ladder on its south end, stepped around a narrow flange on the end of this car, and attempted to step across to the flat car following. In his effort to get to the washroom, plaintiff fell and lost his leg.

The reason for his falling is not clear. Plaintiff said that something on the end of the gondola car held his leg and tripped him; another witness says plaintiff's heel was caught in his own trousers. This gondola car was identified and inspected by the railroad's employees, and found to be in a safe condition. Plaintiff did not produce any evidence to the contrary.

It should be emphasized here that defendant railroad stresses safety. The first notice in the employees rule book is to this effect. According to the evidence, other employees of the railroad were known to have done just what plaintiff did, but whenever the yardmaster at South Rocky Mount saw this, he immediately cautioned the employee against such conduct and pointed out that it was a violation of all safety principles. There was no reason other than impatience for plaintiff's doing what he did.

The main issue raised by this appeal is that of the railroad's negligence. There is, however, a preliminary consideration which we will deal with briefly. No claim can be pursued under the Act unless it arose out of interstate activities. Although admitting that plaintiff would have been engaged in interstate activities had he gone directly to the washroom after putting the engine away, the railroad argues that plaintiff's trip over the tracks to South Main Street broke the continuity of such activity and removed plaintiff from the protection of the Act. We think this contention is without merit. Since plaintiff was led reasonably to believe that he was required to report to his conductor as soon as possible and since his practice of leaving the yard to do so was acquiesced in by the railroad's agents, such practice was a part of his interstate duties and did not lend a different character to his attempted visit to the washroom. See, Erie R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057; North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Brock v. Chicago, R. I. & P. R. Co., 305 Mo. 502, 266 S.W. 691, 36 A.L.R. 891.

This case must be reversed because there was no substantial evidence upon which the question of negligence could have been submitted to the jury. Although decisions under the Act are most liberal in allowing employees to recover, it has been reaffirmed time and again that recovery lies only upon the concurrence of negligence and injury as cause and effect. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. We are unable to see how a jury could have found either.

An employer has a duty to provide his employees a safe place to work, but this duty cannot be absolute. Dangers are implicit in such occupations as railroading, and railroads are not insurers of their employees. Plaintiff lays great stress on Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 63 S.Ct. 444, 87 L.Ed. 610, in which this Court was reversed. That case discussed the then new 1939 Amendment to the Federal Employers' Liability Act dealing with assumption of risk by employees, 45 U. S.C.A. § 54, and said, 318 U.S. on page 54, 63 S.Ct. on page 446: "We hold 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'".

Prior to this Amendment assumption of risk was a defense, even to a negligent employer. Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062. But neither the 1939 Amendment nor the Tiller case's interpretation thereof has the effect of imposing upon a railroad liability without fault. The Amendment, 45 U.S.C.A. § 54, by its terms, applies only where the employer has been negligent. And this was recognized in the Tiller case 318 U.S. at page 67, 63 S.Ct. at page 451, 87 L.Ed. 610: "* * * (The Act leaves) for practical purposes only the question of whether the carrier was negligent and whether that negligence was the proximate cause of the injury."

It is not argued that the train in question was negligently operated. The railroad's negligence allegedly lies in its maintaining a yard fraught with unnecessary danger, or in its failure to remove certain dangers after they were discovered to exist. Assuming for the moment that the railroad was not negligent in failing to provide a bridge or some other absolutely safe means of passage, we can find nothing in the layout or arrangement of the yard...