Bridger v. Union Railway Company

• Decision Date: 02 February 1966
• Docket Number: No. 16179.,16179.
• Citation: 355 F.2d 382
• Parties: Floyd Gene BRIDGER, Plaintiff-Appellee, v. UNION RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.2d 382 (1966)

Floyd Gene BRIDGER, Plaintiff-Appellee, v. UNION RAILWAY COMPANY, Defendant-Appellant.

No. 16179.

United States Court of Appeals Sixth Circuit.

February 2, 1966.

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Thomas R. Price, Memphis, Tenn. (Canada, Russell & Turner, Memphis, Tenn., of counsel), for appellant.

Lucius E. Burch, Jr., Memphis, Tenn. (W. J. Michael Cody, Memphis, Tenn., on the brief; Burch, Porter & Johnson, Memphis, Tenn., of counsel), for appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges, and CONNELL^*, District Judge.

CONNELL, District Judge.

This is an action brought by plaintiff against defendant under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A., Section 51 et seq., for personal injuries sustained on November 29, 1961.

The defendant, Union Railway Company, is that type of a railroad commonly referred to as a Belt Line railroad, running only in and around the City of Memphis, and engaging in the operation of switching railroad cars for the various industries located therein. Plaintiff had been in defendant's employ as a switchman for almost eighteen years at the time he sustained such injuries.

On the night of November 29, 1961, plaintiff, while flagging the movement of a switch engine north across Chelsea Avenue in the City of Memphis during switching operations, was struck by a panel truck going east on Chelsea Avenue driven by a man named Free. Plaintiff was crushed against the front of the engine by the truck, suffering the loss of a leg and other serious injuries.

The accident occurred at the point where defendant's track intersects Chelsea Avenue, one of the most heavily traveled streets in Memphis. The track angles sharply across Chelsea, and serves several industries on the north side of the street. Although the evidence indicates that these crossings were normally made at night, the only permanent warning device utilized by the railroad at this scene was a cross buck sign, which consists of a piece of erect iron pipe holding a wooden cross at the top, containing the lettering "Railroad Crossing." The sign is neither lighted nor reflectorized, and is raised to a height which is sometimes above the normal vision of a motorist approaching the crossing. The view which approaching vehicular traffic would have of an oncoming train is greatly curtailed by the acute angle at which the track intersects Chelsea and a seawall which runs parallel to Chelsea.

Just prior to the accident which caused the plaintiff's injuries, the foreman of the switching crew, Roy Eugene Brandon, and the plaintiff had been riding the engine until it stopped at the intersection of Chelsea. The two then proceeded, side by side, Brandon with a lighted fusee and the plaintiff with a red lantern, to flag the oncoming traffic on Chelsea. As the engine got about halfway to the center line of the street, plaintiff and Brandon began walking alongside the engine on its west side, in the same direction the engine was going; an eastbound automobile had, in the meantime, stopped in the middle lane. At this time a truck approached from the west in the lane of traffic immediately behind the stopped automobile. At this time both the plaintiff and Brandon were still on the west side of the engine; both had intended to climb aboard the side steps of the engine and ride the rest of the way across the street. Brandon got on first, and just as plaintiff started to step up Brandon saw the truck coming toward the front of the engine, and ran down the side steps, blocking the plaintiff's way to safety. Plaintiff's only alternative was an unsuccessful attempt to scramble up the front of the engine. The truck careened into the engine and pinned the plaintiff, crushing his leg.

In his complaint, the plaintiff charged his employer with failing to use ordinary care in providing him with a safe place to work and further that the defendant failed to devise a safe method of performing the flagging at this crossing, and further that the negligence of the defendant's employee, Brandon, in obstructing the plaintiff's access to safety, was negligence attributable to the railroad which, in whole or in part, was a direct and proximate cause of the plaintiff's injuries. The defendant disclaimed any wrongdoing and answered that the sole proximate cause of the plaintiff's injuries was the negligence of the truck driver. The jury returned a general verdict in favor of the plaintiff, and assessed his damages at $60,000.00.¹

Since the impetus of the defendant's appeal is directed to the trial court's rulings on evidentiary matters, it would be useful to reiterate the gravamen of an action by a railroad employee under favor of the Federal Employers' Liability Act, 45 U.S.C.A. § 51:

Every common carrier by railroad while engaging in commerce between any of the several States, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow * * * and children of such employee, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

The statute contemplates that the railroad furnish its employees with a reasonably safe place to work, but the rule does not contemplate absolute elimination of all dangers, but only the elimination of those dangers which could be removed by reasonable care on the part of the employer. Raudenbush v. B. & O. Railroad, 160 F.2d 363, (3rd Cir. 1947). The question is not whether the railroad has placed its employees in a locale which proved to be unsafe, but whether the railroad, by failing to exercise all reasonable care, participated in any manner to effect or permit the unsafe condition. Of course, "reasonable foreseeability of harm is also an essential ingredient of Federal Employers' Liability Act negligence." Gallick v. B. & O. Railroad Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963). There was ample and cogent evidence of the foreseeability here in the notice from its many employees that this was the most dangerous crossing in Memphis, as they had so often reported to their employer railroad.

Since the railroad is not an insurer of its employees' safety, the ultimate question upon which the plaintiff's case rests is whether reason dictates that the railroad should have done more to promote its employees' safety. In pursuit of this issue, the plaintiff here has sought to establish (1) that the Chelsea Avenue crossing was one of unusual hazards; (2) that the defendant had notice of these hazards; (3) that the railroad acted unreasonably in failing to reduce the hazards of its crossing; and (4) that, ultimately, the railroad was liable to the plaintiff for exposing him to an unreasonable risk of harm by placing him in an unsafe place to work.

The defendant resisted at trial, and now cites as error on appeal, the introduction of opinion evidence as to the dangerous character of the crossing and whether safe railroading practices would require other means of warning vehicular traffic. The defendant also attacks the admission of evidence of prior similar accidents at the crossing in question, both by the spoken word of the plaintiff's witnesses and the mute testimony of the Memphis Police Department accident investigation records. The third assignment of error claimed by the defendant challenges the trial court's rejection of the defendant's compliance with certain municipal ordinances of the City of Memphis. Finally, the defendant has expressed a dissatisfaction with the court's refusal to present the defendant's requested charges.

Over the defendant's objection, the plaintiff's witnesses were allowed to testify that, in their opinion, the crossing was dangerous, unsafe, hazardous, etc. This negative testimony came from six switchmen whose combined railroading experience exceeded a century. Defendant argues that this case did not present a situation requiring the use of expert testimony, and that the introduction of these opinions invaded the province of the jury. We state preliminarily that a trial judge is vested with a wide discretion in determining whether or not expert testimony is admissible. Salem v. U. S. Lines Co., 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); Joseph A. Bass Co. v. United States, etc., 340 F.2d 842 (8th Cir. 1965); Berolzheimer v. Heil Co., 340 F.2d 122 (7th Cir. 1965); Jones v. Goodlove, 334 F.2d 90 (8th Cir. 1964); Thomas v. Harper, 385 S.W.2d 130 (Tenn.App.1964). The trial judge's discretion is necessarily broad for he sits in the arena of litigation. He knows from the pleadings the contentions of the parties, the direction which the case will take, and from his experience can predict, as the evidence unfolds before him, the problems with which the jury must wrestle. From his exposure to the peculiar circumstances of a particular case, he is best suited to answer Professor Wigmore's determinative question: "On this subject can a jury from this person receive appreciable help?" 7 Wigmore, Evidence 21 (3rd Ed.1940). For this reason the United States Supreme Court has ordained that the wide bounds of the trial Judge's discretion shall remain unimpinged unless and until his action is manifestly erroneous. Salem v. U. S. Lines Co., supra. Cf. also, McCormick, Evidence (1954).

To warrant or permit the use of expert testimony, two conditions must be met: first, the subject matter must be closely related to a particular profession, business or science and not within the common knowledge of the average layman; second, the witness must have such skill, experience or knowledge in that particular field as to make it appear that his...