Burns v. Penn Central Co.

• Decision Date: 01 July 1975
• Docket Number: No. 558,D,558
• Citation: 519 F.2d 512
• Parties: Teresa M. BURNS, an Administratrix of the Goods, Chattels and Credits of George Vincent Burns, Plaintiff-Appellant, v. PENN CENTRAL COMPANY, n/k/a Penn Central Transportation Company, Defendant- Appellee. ocket 74-2294.
• Court: U.S. Court of Appeals — Second Circuit

Page 512

519 F.2d 512

Teresa M. BURNS, an Administratrix of the Goods, Chattels and Credits of George Vincent Burns, Plaintiff-Appellant, v. PENN CENTRAL COMPANY, n/k/a Penn Central Transportation

Company, Defendant- Appellee.

No. 558, Docket 74-2294.

United States Court of Appeals, Second Circuit.

Argued March 19, 1975.

Decided July 1, 1975.

Arnold B. Elkind, New York City, (Elkind, Lampson & Sable, New York City), for plaintiff-appellant.

Robert M. Peet, New York City, for defendant-appellee.

Before SMITH and TIMBERS, Circuit Judges, and WEINSTEIN, ^* District Judge.

J. JOSEPH SMITH, Circuit Judge:

Teresa M. Burns, widow of George V. Burns and administratrix of her deceased husband's estate, appeals from the judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing her action for the wrongful death of her husband during the performance of his duties as a trainman for the Penn Central Company. This suit authorized by the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, was tried before a jury but, following the jury's inability to agree upon a verdict, Judge Knapp ultimately determined that the defendant was entitled to judgment as a matter of law and granted the railroad's motion for a directed verdict. We conclude that the evidence offered at trial by the plaintiff was sufficient for purposes of the FELA to entitle her to a final adjudication of her claim by a jury and therefore reverse the judgment of the district court and remand for a new trial.

On March 15, 1969, the decedent Burns, a longtime employee of the defendant, was working as a brakeman on a passenger run which passed over the 138th Street Bridge in Manhattan and, en route downtown, stopped to load and unload passengers at a station on 125th Street. As was customary for trainmen to do on this run, Burns opened the side and then trapdoor of one of the cars once the train had passed over the 138th Street Bridge. This action prepared the train for the entrance and departure of passengers at the 125th Street station. To prevent, as prescribed by company rules, ¹ attempts by passengers to board or leave the train between stations, Burns followed the also customary practice of assuming a position on the bottom step in the open doorway. With the train slowly approaching the 125th Street station, a rifle shot from the vicinity of 128th Street found Burns in this exposed posture and killed him instantaneously. Unbeknown to Burns and the other employees on the train, there had in the last ten months been four stonings of passenger cars within three blocks of the site of Burns' slaying and an additional four stonings within 25 blocks. The defendant's records, however, evidence its knowledge of these stonings. Whether, in light of this knowledge of the stonings and the general conditions in the Harlem area, the defendant was obliged to take measures to ensure that its employees were not, as Burns in fact was, unwittingly victimized is the subject of the complaint under review.

As early as 1955, Judge Jerome Frank was able to observe that "the more recent Supreme Court decisions make it clear that, under that Act (the FELA), the jury's power to draw inferences is greater than in common-law actions." Cahill v. New York, New Haven & Hartford R. R., 224 F.2d 637, 640 (2d Cir.) (Frank, J., dissenting) rev'd, 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790 (1955) (per curiam), order of reversal recalled & amended, case remanded, 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075 (1956) (per curiam). Two years later the Supreme Court set forth the test for FELA claims to go to a jury in a manner which left little doubt that Judge Frank's characterization was right:

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.

Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957) (emphasis added). In Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), the Court then offered a compelling and memorable illustration of the breadth of the applicable test by upholding a verdict allowing a railroad crew foreman to recover for serious injury sustained as the result of a bite by an insect which the jury could infer had come from or been attracted by a fetid pool which the jury could infer the railroad company had been negligent to maintain.

In the instant case, the defendant maintains, and the district court agreed, that there was no negligence because the injury was not foreseeable. As Gallick, supra, attests, foreseeability of harm is no less a matter generally left to the jury's broad decision than any other part of the requisite proof to recover under the FELA. Furthermore, although the criminal nature of the act causing injury may well bear on the jury's assessment of the defendant's ability to foresee that injury of this type might result from its acts or omissions, a jury is not constrained to find that harm caused by a third party's unlawful conduct was not foreseeable. See Lillie v. Thompson,332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947) (per curiam) (cause of action under FELA stated by complaint alleging negligence in providing plaintiff telegraph operator assaulted in office by late-night intruder with inadequately lit and unguarded place of employment). At the outset, then, we dismiss any suggestion ² that the issue framed by this case in any way summoned greater intervention by the trial court than typically sanctioned in FELA cases.

Thus, unless, as in Inman v. Baltimore & Ohio R. R., 361 U.S. 138, 140, 80 S.Ct. 242, 244, 4 L.Ed.2d 198 (1959) (flagman killed by drunken motorist at well-lit intersection with all regular railroad crossing signals in working order and no record of similar accidents at site), "the evidence here was so thin that, on a judicial appraisal, the conclusion must be drawn that negligence on the part of the railroad could have played no part in petitioner's (here, decedent's) injury," the district court's decision that a jury verdict was dispensable was contrary to established law. Plainly, in the instant case, the evidence offered by the plaintiff to support a jury finding that the defendant could have foreseen the type of injury incurred and therefore was negligent in the fulfillment of its duties to its employee under the FELA was not so miniscule as to compel such a conclusion. Based on the railroad's actual knowledge of stonings in the vicinity in recent months and its constructive (and indubitably actual) knowledge of the generally dangerous conditions prevailing in the neighborhood in which the fatality transpired,...