Bailey v. Central Vermont Ry, No. 640

• Court: United States Supreme Court
• Writing for the Court: DOUGLAS
• Citation: 63 S.Ct. 1062,87 L.Ed. 1444,319 U.S. 350
• Parties: BAILEY v. CENTRAL VERMONT RY., Inc
• Docket Number: No. 640
• Decision Date: 24 May 1943

319 U.S. 350 63 S.Ct. 1062 87 L.Ed. 1444 BAILEY

v.

CENTRAL VERMONT RY., Inc.

No. 640. Argued April 13, 1943. Decided May 24, 1943.

Mr. Joseph A. McNamara, of Burlington, Vt., for petitioner.

Mr. Horace H. Powers, of St. Albans, Vt., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This action was brought under the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51, in the state courts of Vermont to recover damages for the death of Bernard E. Bailey, one of respondent's employees. At the close of all the evidence respondent moved for a directed verdict. The Court denied the motion and submitted the case to the jury which returned a verdict for petitioner. On appeal the Supreme Court of Vermont reversed, by a divided vote, holding that the motion for a directed verdict should have been granted because negligence was not shown. 113 Vt. 8, 28 A.2d 639. The case is here on certiorari.

Page 351

Bailey had worked for respondent as a sectionman for about five years. On the day in question—May 14, 1940—he went to work on a work train to a point on the road in Williston, Vt., where he and other members of the crew unloaded track material to be used on the roadbed. Instructions were then received to unload a car filled with cinders. The evidence of the accident viewed in a light favorable to petitioner was as follows:

The car was pulled onto a bridge over a cattle pass so that the cinders could be dumped through the ties in the bridge floor onto the roadway below. The floor of the bridge was about 18 feet above the ground. The only available footing at the side of the car was about 12 inches wide. Of this space 8 or 9 inches were taken up by a raised stringer, i.e., a timber which lay across the ties and was set in 3 or 4 inches from their ends. There was no guard rail. The cinders to be unloaded were in a hopper car. That type of car has doors in the floor which are closed by a chain which winds up on a shaft running crossways of the car. The doors are opened from the side by one man turning a nut on the end of the shaft while another disengages from a ratchet a dog which holds the shaft. A wrench is applied to the nut at the end of the shaft, the operator pulls its handle back to relieve the tension on the dog, the other person releases the dog, the operator of the wrench pushes back on it to open the hopper, and the weight of the material in the car opens the doors. When the hopper starts to open, the shaft spins, and the operator must disengage the wrench or let go of it, lest he thrown off balance or knocked down. The wrench used by Bailey was a heavy frog wrench—open jaws and a handle about three feet long. It had been used for many years for that purpose and no one had been injured by it. Bailey certainly was unskilled and perhaps unfamiliar in the opening of hopper cars. No one had ever seen him open one. Such an operation was usually

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performed by men older in point of service. Bailey had been present on a few occasions when hopper cars were unloaded but usually he was on top of the car at the time. Cinders were dumped at this bridge about once a year. As Bailey walked out on the stringer on the bridge and put the wrench on the nut, the section foreman said, 'Be careful the wrench doesn't catch you.' Bailey at once pushed on the wrench but the hopper did not open; he gave another push on the wrench, the hopper opened, the nut spun, and Bailey was thrown by the wrench into the roadway below. The hopper car could have been opened before it was moved onto the bridge and any cinders which spilled on the roadbed shoveled onto the roadway beneath the bridge. Or after the cinders had been dumped upon the roadbed a railroad tie could have been utilized as a drag to push cinders from the roadbed to the ground below the bridge.

Bailey died from the injuries resulting from the fall.

There was in our view sufficient evidence to go to the jury on the question whether, as alleged in the complaint, respondent was negligent in failing to use reasonable care in furnishing Bailey with a safe place to do the work.

Sec. 1 of the Act makes the carrier liable in damages for any injury or death 'resulting in whole or in part from the negligence' of any of its 'officers, agents, or employees'. The rights which the Act creates are federal rights protected by federal rather than local rules of law. In re Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475; Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157. And those federal rules have been largely fashioned from the common law (Seaboard Air Line Ry. v. Horton, supra) except as Congress has written into the Act different standards. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. —-. At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain. 3 Labatt,

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Master & Servant (2d ed.) § 917. That rule is deeply engrained in federal jurisprudence. Patton v. Texas & P. Ry. Co., 179 U.S. 658, 664, 21 S.Ct. 275, 277, 45 L.Ed. 361, and cases cited; Kreigh v. Westinghouse, C., K. & Co., 214 U.S. 249, 256, 257, 29 S.Ct. 619, 621, 622, 53 L.Ed. 984; Kenmont Coal Co. v. Patton, 6 Cir., 268 F. 334, 336. As stated by this Court in the Patton case it is a duty which becomes 'more imperative' as the risk increases. 'Reasonable care becomes, then, a demand of higher supremacy, and yet, in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery.' 179 U.S. page 664, 21 S.Ct. page 278, 45 L.Ed. 361. It is that rule which obtains under the Employers' Liability Act. See Coal & Coke Ry. Co. v. Deal, 4 Cir., 231 F. 604; Northwestern Pac. R. Co. v. Fiedler, 9 Cir., 52 F.2d 400; Thomson v. Boles, 8 Cir., 123 F.2d 487; 2 Roberts, Federal Liabilities of Carriers (2d ed.) § 807. That duty of the carrier is a 'continuing one' (Kreigh v. Westinghouse, C., K. & Co., supra, 214 U.S. page 256, 29 S.Ct. page 622, 53 L.Ed. 984) from which the carrier is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent.

The nature of the task which Bailey undertook, the hazards which it entailed, the effort which it required, the kind of footing he had, the space in which he could stand, the absence of a guard rail, the height of the bridge above the ground, the fact that the car could have been opened or unloaded near the bridge on level ground—all these were facts and circumstances for the jury to weigh and appraise in determining whether respondent in furnishing Bailey with that particular place in which to perform the task was negligent. The debatable quality of...