Baker v. Baltimore & Ohio R. Co.

• Decision Date: 29 August 1974
• Docket Number: No. 73-2213,73-2213
• Citation: 502 F.2d 638
• Parties: Dennis W. BAKER, Plaintiff-Appellee, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 638

502 F.2d 638

Dennis W. BAKER, Plaintiff-Appellee, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellant.

No. 73-2213.

United States Court of Appeals, Sixth Circuit.

Argued April 3, 1974.

Decided Aug. 29, 1974.

James L. O'Connell, Cincinnati, Ohio, for defendant-appellant; Lindhorst & Dreidame, Cincinnati, Ohio, on briefs.

C. Donald Heile, Cincinnati, Ohio, for plaintiff-appellee; Charles J. Kelly, Cunningham, Cunningham, Heile & Kelly, Cincinnati, Ohio, on briefs.

Before CELEBREZZE, McCREE, Circuit Judges, and WALINSKI, District judge. ^*

CELEBREZZE, Circuit Judge.

The Baltimore & Ohio Railroad Company appeals from a jury verdict and judgment awarding Appellee $86,500 in damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51-60 (1972). Robert Kuntz and Dennis Baker inspected railroad cars for Appellant Baltimore & Ohio Railroad Company. On December 20, 1970, at approximately 3:00 a.m., they were on a lunch break inside the inspectors' shanty. Kuntz brought a target pistol into the shanty and showed it to another employee. He then placed the pistol in the pocket or folds of his coat, which was resting on top a candy machine. A supervisor summoned Kuntz and Appellee to inspect a car which had just arrived. While Kuntz was in the process of removing his coat from the candy machine, the pistol fell to the floor and discharged, causing permanent damage to Appellee's thigh.

The railroad had no regulations concerning the carrying of pistols by its car inspectors. No railroad foreman or supervisor knew of the presence of Kuntz' pistol on Appellant's premises until after the mishap occurred.

Appellant raises two basic objections to the proceedings below. First, it argues that it was entitled to a directed verdict or at least to more favorable jury instructions as to liability. Second, it asserts that the District Court erred in instructing the jury on damages, on the grounds that lost future wages should not have been allowed and that future damages should not have been permitted because of the absence of evidence of a proper interest rate.

Appellant's basic contention is that it is not liable, as a matter of law, for Appellee's injury. This argument is based on two related assertions-- that employee Kuntz was not acting in the course and scope of his employment at the time the accident occurred and that Kuntz' negligence resulted solely from the presence of the pistol on the premises rather than from any act in the courst of Kuntz' employment.

Appellant's liability in this matter is a question of federal law, to be determined by reference to the policies that undergird the FELA. Central Vermont Ry. v. White, 238 U.S. 507, 511-512, 35 S.Ct. 865, 59 L.Ed. 1433 (1915). The enactment of the FELA represented 'an avowed departure from the rules of the common law.' Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958). Rather than adopting the common law view that the torts of fellow servants are distinct from those of the employer, Congress enacted a national standard designed to promote

the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden. ¹

As the Supreme Court stated in Sinkler, 356 U.S. at 330, 78 S.Ct. at 762:

(A) railroad worker may recover from his employer for an injury caused in whole or in part by a fellow worker, not because the employer is himself to blame, but because justice demands that one who gives his labor to the furtherance of the enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered. If this standard is not met and injury results, the worker is compensated in damages.

FELA's liberal purpose must be kept in mind when confronting arguments that would restrict an employer's liability under the Act.

Appellant argues that it is not liable for the negligence of its employee Kuntz unless Kuntz' negligence occurred while he was 'in the course and scope of his employment,' and Appellant construes that term to require that Kuntz' negligence must have occurred while he was acting 'in furtherance of defendant's business.' It argues that Kuntz was not so acting when he was removing his coat from the candy machine. On this ground Appellant claims that the District Court should have directed a verdict in its favor or should have granted a jury instruction to the desired effect.

We disagree. Under the FELA a defendant's liability for the negligence of its servants is not restricted by the common law doctrine of respondeat superior. Rather, the FELA has made the railroad liable to injured employees 'for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees' of the railroad. 45 U.S.C. 51 (1972). It is unnecessary to show that such persons were negligent while performing a particular act 'in furtherance of their master's business,' as this common law term has been interpreted. See, e.g., Jackson v. Chicago, R.I. & P.Ry., 178 F. 432 (8th Cir. 1910). Under the Supreme Court's reasoning in Sinkler, the restrictive view of railroad liability that Appellant demands is untenable. ²

Thus, it was proper for the District Court to refuse an instruction stating the restrictive 'in the furtherance of the master's business' test. Instead, the District Court instructed the jury that the railroad was liable for all negligent acts of its employees 'committed by such employees while in the performance of their duties and within the scope of their employment.' Later in his charge the District Judge stated:

'Now, your specific question is this: At or before the time this incident occurred had (Kuntz) returned to the control of his master, his foreman, or had he returned to the business of the Baltimore & Ohio Railroad at or before this occurred? 'If you find by a preponderance that he had, then he was engaged in the course of his employment at the time of the incident.'

We believe that this instruction was too favorable to Appellant, because it adopts a restrictive 'in the course of employment' test by suggesting that Kuntz was not in the course of his employment while on his lunch break. Appellee, however, has not challenged the validity of the Court's instructions. Assuming that a 'course of employment' test would apply, ³ the better view is that 'the scope of employment includes not only actual service, but also those things necessarily incident thereto,' Virginian Ry. v. Early, 130 F.2d 548, 550 (4th Cir. 1942), such as coming to and leaving work while on the employer's premises. Erie R.R. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057 (1917); North Carolina R.R. v. Zachary, 232 U.S. 248, 260, 34 S.Ct. 305, 309, 58 L.Ed. 591 (1914) (visit to house was not 'at all out of the ordinary' and was not 'inconsistent with his duty to his employer'), and resting while on duty, Mostyn v. Delaware, L. & W. R.R., 160 F.2d 15 (2d Cir. 1947). ⁴ Thus, it may be said that Kuntz was in the course of his employment during the lunch break as well as while removing his coat from the candy machine. Indeed, on very similar facts in a Federal Tort Claims Act case, where the 'course of employment' test does apply, we concluded that a negligent servant was in the scope of her employment when a pistol discharged, injuring a hospital patient. Russell v. United States, 465 F.2d 1261 (6th Cir. 1972).

It is clear from the jury's conclusion that the correct result was not affected by the instructions, since the jury found Appellant liable for Kuntz' negligence in removing his coat from the machine. Thus, since despite out reservations about the District Court's instructions the jurors reached the proper conclusion, we find no reversible error. Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir. 1967); Spaeth v. United States, 232 F.2d 776, 777 (6th Cir. 1956). The possible fault in the jury charge was in Appellant's favor, and it cannot claim a new trial by virtue of such benefit.

A second branch of Appellant's argument that it should have received a directed verdict or more favorable jury instructions as to liability is that Appellee's injury was caused primarily by Kuntz' bringing a pistol into the inspector's shanty, which in itself may not have been an act of negligence.

In this case, however, the act complained of was Kuntz' removing his coat from the candy machine while forgetting about the pistol, in preparation for inspecting a railroad car. The test for whether this act amounts to negligence under the FELA is whether the act 'played any part, even the slightest, in producting (Appellee's) injury.' Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, reh. denied,353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764 (1957); Tyree v. New York Central R.R., 382 F.2d 524 (6th Cir. 1967). We have held that it is reversible error for a District Court to fail to instruct the fury that employer negligence 'in whole or in part' suffices to establish employer liability, thus emphasizing that in FELA cases 'Congress has deliberately established a more protective principle for railroad employees than that of the common law.' Hausrath v. New York Central R.R., 401 F.2d 634, 638 (6th Cir. 1968). See also Rodriguez v. Delray Connecting R.R., 473 F.2d 819, 820 (6th Cir. 1973). This principle holds true where the employer is sued because of the negligence of its employees, as well as where the employer is sued because of the employer's failure to provide a safe place of work. See 45 U.S.C. 51 (1972). Appellant is liable if Kuntz' negligence in removing his coat from the candy machine while forgetting about the pistol played 'a part' in causing Appellee's injury. Tyree, 382 F.2d...