ATLANTIC COAST LINE RAILROAD COMPANY v. Massengill

• Decision Date: 09 March 1959
• Docket Number: No. 7789.,7789.
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. H. W. MASSENGILL, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

264 F.2d 726 (1959)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. H. W. MASSENGILL, Appellee.

No. 7789.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1959.

Decided March 9, 1959.

Collins Denny, Jr., Richmond, Va. (Denny, Valentine & Davenport, Richmond, Va., and Russell T. Bradford, Norfolk, Va., on the brief), for appellant.

William F. Davis, Suffolk, Va. (Woodward, Ferguson & Davis, Suffolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and PAUL and BOREMAN, District Judges.

SOBELOFF, Chief Judge.

The only question put to us on this appeal is whether the District Judge erred in submitting the case to the jury. The action is one brought by a section foreman of the Atlantic Coast Line Railroad Company against his employer under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the loss of an eye, for which he was awarded $7,500. The appellant's contention, appropriately raised by motions at various stages of the proceedings, is that there was not sufficient evidence of its negligence to raise an issue for the jury.

Massengill, the plaintiff, was in the employ of the defendant railroad for many years, and from 1942 was one of its section foremen. When injured on October 4, 1956, he was with his gang of workmen as usual, but on that day he had with him, in addition, the two-man crew of a "Matisa tamper," a machine for tamping ballast around railroad ties. The tamper machine, with the operator seated in the center, operates under its own power on the railroad track. On each side of the machine are eight metal feet, arranged in sets of four; two feet in each set come down on the inside of the rail and two on the outside. The feet are driven down into the ballast on both sides of the tie, and are then brought together to pinch the ballast in closely under the tie. Operated under air pressure, the feet strike the ballast with great force and as a consequence wear out frequently and must be replaced.

The machine is so constructed that replacement of the feet can ordinarily be effected rather simply. The top of each foot is tapered to fit into a sleeve. Normally, when the sleeve is loosened by turning a bolt, the foot will fall out. Sometimes, however, the foot becomes jammed in the sleeve and will not come free even if hammered. When this happens, the standard procedure is to insert a tapered drift pin into an oval hole which is provided in the sleeve for this purpose, and then strike the pin with a hammer to force the foot out of the sleeve.

The tamping machine had been delivered to the plaintiff's section two days before the accident, and had been used the day before. On the afternoon before the injury, Massengill instructed the operator of the machine to change the feet, but when the plaintiff and his crew arrived on the next morning, they found that one worn foot had not been removed. The machine's operator and his helper tried to free the jammed foot by hammering upon it. When this failed, one of them took a drift pin from the tool box on the machine and inserted it in the slot above the jammed foot but, when hit with a hammer, the pin broke in half. Another pin was obtained and placed in the slot. This time Richard Rhodes, one of the laborers in plaintiff's gang, hit the pin with a sledge hammer, but it fell to the ground without dislodging the foot.

At this point Massengill approached the tamper, picked up the pin, and replaced it in the slot. As he started to back away, and had proceeded about ten or twelve feet, he stumbled over the feet of a laborer. Meanwhile, Rhodes, without paying any attention to the plaintiff's proximity, (although he knew that Massengill, like himself, was wearing no goggles,) struck the pin a second blow. A small piece of the pin chipped off and entered the plaintiff's eye, causing the loss of that organ.

Involved here, essentially, is an interpretation of this unique set of facts, not a dispute over legal principles. The principle has been stated many times, and the formulation in Rogers v. Missouri Pacific Railroad Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, will do as well as any. There the Supreme Court said:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee\'s contributory negligence."

The rule is clear enough; the difficulty is in its application.

The attorneys for the respective parties have cited and discussed in their briefs and oral arguments the many notable decisions of the Supreme Court in federal employers' liability cases written during the past two decades, and especially in the past two years.¹ Although it would be professionally intriguing to review the cases here, such review could throw little direct light upon our immediate problem. This is true because the adjudicated cases differ, one from another, and the factual context here so little resembles any to be found in the cases that have gone before.

Upon the facts above recited, which the defendant does not controvert, the plaintiff based two charges of negligence against the railroad; first, that the tamping machine was defective, and second, that the pin was struck in a negligent manner.

We are not prepared to say that there was evidence from which a jury could reasonably find negligence in respect to the condition of the tamper itself. In normal use the feet of the tamper were expected to become worn. Nor is negligence apparent in making use of a drift pin to remove a worn foot from its sleeve, or in striking the pin with a hammer.

Plaintiff's counsel argued that there was negligence in the very manner of striking the pin, that is to say that the angle at which the hammer struck the pin was improper; and it is suggested that because the pin was not squarely hit, it was shattered. We perceive no reasonable basis for a conclusion of negligence in this regard; a man swinging a sledge hammer is not to be held to the delicate precision one may expect of a watchmaker. But a jury could reasonably conclude that Rhodes acted with less than reasonable care in failing to observe the plaintiff's position, and in proceeding to strike the pin without waiting for the plaintiff to reach a place of safety — in other words, that the timing of the hammer blow was negligent.

The defendant's brief asserts: "Under our society, railroad work must be carried on. It cannot in the nature of things be...