Bertholf v. Burlington Northern Railroad

• Decision Date: 09 September 1975
• Docket Number: No. C-74-270.,C-74-270.
• Citation: 402 F. Supp. 171
• Parties: Alva BERTHOLF, Plaintiff, v. BURLINGTON NORTHERN RAILROAD, Defendant.
• Court: U.S. District Court — District of Washington

402 F. Supp. 171

Alva BERTHOLF, Plaintiff, v. BURLINGTON NORTHERN RAILROAD, Defendant.

No. C-74-270.

United States District Court, E. D. Washington.

September 9, 1975.

Gail K. Holden, Turner, Stoeve, Gagliardi & Kennedy, Spokane, Wash., for plaintiff.

Robert C. Williams, Seattle, Wash., for defendant.

MEMORANDUM AND ORDER

NEILL, Chief Judge.

Plaintiff seeks recovery from the defendant railroad for severe and lasting injuries that resulted when a hoist allegedly slipped, dropping a heavy railroad car component (a bolster) onto his arm. Plaintiff was engaged in replacing the springs of a hopper car when the accident occurred. The affidavits and depositions on file indicate that plaintiff was to some extent contributorily negligent in that he had prior knowledge of the defect but failed to report it to his employer and continued to use the hoist.

Plaintiff's affidavits further indicate that the defect in the hoist was the proximate cause of his injuries and that the hoist had not been inspected regularly. In an affidavit, plaintiff's expert witness concludes, on the basis of his personal inspection, that the hoist had been poorly maintained. The only affidavit controverting plaintiff's allegations was submitted by defense counsel and relies on plaintiff's deposition in asserting that plaintiff failed to follow safety procedures and that he was therefore contributorily negligent.¹

Plaintiff has filed a motion for summary judgment, relying on 45 U.S.C. § 53, which provides, in relevant part,

. . . the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

Plaintiff argues that the affidavits and depositions on file prove a violation of the safety regulations promulgated under 29 U.S.C. § 654, the Occupational Safety and Health Act (hereinafter OSHA), and found at 29 C.F.R. § 1910.179 (1974). These regulations prescribe inspection schedules for cranes and hoists such as the one involved in plaintiff's accident, and the affidavits do establish a violation by the employer. Therefore, plaintiff concludes, since these regulations are a "statute enacted for the safety of employees" within the meaning of the above-quoted section, contributory negligence should not operate to diminish his recovery and he is entitled to summary judgment on the issue of liability as a matter of law.

Plaintiff's argument finds support in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), wherein the Supreme Court held that the Federal Employers' Liability Act (hereinafter FELA), Title 45, United States Code, creates employer liability without regard to negligence whenever an employer violation of any safety statute contributes to the employee's injury, irrespective of whether the injury is of the type the statute was designed to protect against. In dictum, the Fifth Circuit Court of Appeals has interpreted Kernan to mean that a violation of any safety statute would also preclude diminution of an employee's recovery under FELA irrespective of the employee's contributory negligence. Neal v. Saga Shipping Co., S. A., 407 F.2d 481, 486 (5th Cir. 1969), cert. denied 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969).

However, past decisions of the Supreme Court indicate that the proviso of 45 U.S.C. § 53 applies only to violations of the Safety Appliance Act, 45 U.S.C. § 1 et seq., and the Boiler Inspection Act, 45 U.S.C. § 23 et seq., which are both part of FELA. Moore v. Chesapeake & Ohio R. Co., 291 U.S. 205, 210, 54 S.Ct. 402, 78 L.Ed. 755 (1934), Urie v. Thompson, 337 U.S. 163, 188-189, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Further, a careful reading of Kernan v. American Dredging Co., supra, reveals that the Kernan Court was concerned solely with the issue of employer liability under 45 U.S.C. § 51 of FELA, and not with the question of apportioning damages between the employer and employee. This conclusion finds support in the fact that the Kernan decision does not mention section 53 of Title 45, the section on which plaintiff relies, but interprets only sections 51 and 54, which create a cause of action under FELA and eliminate assumption of risk as a bar to recovery. See also, Heath v. Matson Navigation Co., 333 F.Supp. 131, 134 (D.Haw. 1971).

In summary, it is clear from decisions of the Supreme Court that, under FELA,

any violation of any statute, not simply the

...