Caillouette v. Baltimore & Ohio Chicago Terminal R. Co.

• Decision Date: 14 April 1983
• Docket Number: No. 82-1389,82-1389
• Citation: 705 F.2d 243
• Parties: 12 Fed. R. Evid. Serv. 1579 Edward J. CAILLOUETTE, Plaintiff-Appellee, v. BALTIMORE & OHIO CHICAGO TERMINAL RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 243

705 F.2d 243

12 Fed. R. Evid. Serv. 1579

Edward J. CAILLOUETTE, Plaintiff-Appellee, v. BALTIMORE & OHIO CHICAGO TERMINAL RAILROAD COMPANY,

Defendant-Appellant.

No. 82-1389.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 4, 1982.

Decided April 14, 1983.

Paul V. Esposito, Lewis, Overbeck & Furman, Chicago, Ill., for defendant-appellant.

Donald A. Shapiro, Chicago, Ill., for plaintiff-appellee.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

ESCHBACH, Circuit Judge.

The Baltimore and Ohio Chicago Terminal Railroad Company ("the Railroad") appeals from a jury verdict in favor of Edward J. Caillouette in the amount of $81,000.00. The action was brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60. For the reasons below, we affirm.

I

Caillouette was a switchman employed by the Railroad since 1969. His job was to couple tracks and switch trains within the Railroad's Barr Yard switching yard located in Riverdale, Illinois. The yard spanned a distance of several blocks, bounded by Ashland Avenue on the west side and Halsted Street on the east. Caillouette regularly worked at locations all over the yard, but reported to work each morning at either the caller's office at the Halsted side or the carmen's shanty at the Ashland side. He was informed the day before at which end of the yard his work would begin the next day. If his work was to begin at the Halsted side, he usually parked his car at that end and entered the yard at the Halsted entrance. However, on July 9, 1978, his car was not operating properly and a neighbor gave him a ride to work, dropping him off at the Ashland entrance. This was the first time that he entered the yard on the Ashland side when he was to report at the Halsted side.

Caillouette headed toward the carmen's shanty, intending to call the yard master to request that an engine be sent to take him to the Halsted end of the yard. As he rounded the corner of the shanty, he claims that he tripped over some rusty wire lying on the ground, permanently injuring his knee.

On July 7, 1980, Caillouette brought suit in federal court under FELA. The Railroad was substituted for the original defendant on August 1, 1980. After a jury trial, a verdict was returned in favor of Caillouette in the amount of $90,000.00, which was reduced by $9,000.00 because of the jury's finding of contributory negligence. The Railroad appeals.

II

The Railroad raises several issues on appeal. First, it contends that the district court lacked subject matter jurisdiction over this action because Caillouette was not engaged in the course of his employment at the time he was injured. Next, the Railroad claims that the evidence established that the Railroad was not negligent and that the sole cause of Caillouette's injury was his own negligence. Third, the Railroad contends that its cross-examination of Caillouette was improperly curtailed. And finally, the Railroad disputes the adequacy and accuracy of the jury instructions.

III

A. Subject Matter Jurisdiction

There is no dispute that if Caillouette had been actually working at the time of his accident, the Railroad would have been subject to suit under FELA. In other words, the Railroad is a "common carrier by railroad ... engaging in [interstate] commerce ...." 45 U.S.C. Sec. 51. The Railroad argues, however, that Caillouette was not yet at work--that he was still in the process of commuting to work--at the time of the accident, and thus this case is outside the scope of FELA.

The Railroad likens this case to those in which a railroad employee was commuting by a free pass on his employer's trains. These employees were on the employers' premises, yet courts have consistently held FELA inapplicable. E.g., Getty v. Boston & Maine Corp., 505 F.2d 1226, 1227-28 (1st Cir.1974); Metropolitan Coal Co. v. Johnson, 265 F.2d 173, 178 (1st Cir.1959); Sassaman v. Pennsylvania Railroad, 144 F.2d 950, 952-53 (3rd Cir.1944); cf. Parker v. Long Island Railroad, 425 F.2d 1013, 1015 (2d Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 58 (1970) (exception made when employee was subject to emergency recall and other means of transportation were not feasible); Quirk v. New York Central & St. Louis Railroad, 189 F.2d 97, 100-01 (7th Cir.), cert. denied, 342 U.S. 871, 72 S.Ct. 105, 96 L.Ed. 655 (1951) (employee returning home in company car not covered by FELA). The Railroad argues that since Caillouette was still several blocks from where he was to report for work and since he was calling a train to take him to that site, this case is governed by the commuter cases in which subject matter jurisdiction was held to be absent.

Caillouette, on the other hand, distinguishes his situation from the commuter cases and argues that this case is governed by those cases that have held that an employee is still covered by FELA when traversing the work site on his way to or from work. E.g., Erie Railroad v. Winfield, 244 U.S. 170, 173, 37 S.Ct. 556, 557, 61 L.Ed. 1057 (1916); Lukon v. Pennsylvania Rail Co., 131 F.2d 327, 329 (3rd Cir.1942); cf. Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 222, 72 L.Ed. 507 (1928) (decided under Utah's Workman's Compensation Act).

Consideration of the policies behind the commuter cases, so called, leads us to conclude that this case comes within FELA coverage. Commuters are excluded from coverage for two reasons--they are not required to commute on their employer's trains, and, while commuting, they are in no greater danger than any other member of the commuting public. Metropolitan Coal v. Johnson, supra, 365 F.2d at 178; Sassaman v. Pennsylvania Railroad, supra, 144 F.2d at 953. Employees traversing the work site are covered because this is a necessary incident of the day's work. Erie Railroad v. Winfield, supra, 244 U.S. at 173, 37 S.Ct. at 557.

In the instant case, Caillouette was in an area not open to the public and hence was subject to dangers beyond those experienced by the commuting public. He was on his employer's premises at his worksite, though not yet at the exact location where he was to report. He had to, of necessity, cross some part of the worksite to reach the place where he was to report. Though he would have had to travel a shorter distance within the yard if he had entered through the Halsted entrance, we decline to hold that FELA coverage is precluded unless an employee enters his employer's premises by the entrance closest to the location of his work. The scope of FELA must be decided in light of the facts of each particular case. See Baker v. Texas & Pacific Railway, 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959) (deciding whether a worker was an employee of the railroad); New York Central & Hudson River Railroad v. Carr, 238 U.S. 260, 263-64, 35 S.Ct. 780, 780-81, 59 L.Ed. 1298 (1915) (deciding whether an employee was engaged in interstate business). In light of the facts presented in this particular case, we hold that FELA does apply and that the district court did have subject matter jurisdiction.

B. Negligence

The Railroad contends that there was no probative evidence to support a jury finding of negligence on its part, and that the record established that the sole proximate cause of Caillouette's accident was his own negligence. The railroad therefore urges us to hold that the district court erred in denying its Motions for a Directed Verdict and Judgment Notwithstanding the Verdict.

It is well established that, under FELA, a case must go to the jury if there is any probative evidence to support a finding of even the slightest negligence on the part of the employer, Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957), and that jury verdicts in favor of plaintiffs can be sustained upon evidence that would not support such a verdict in ordinary tort actions, Heater v. Chesapeake & Ohio Railway, 497 F.2d 1243, 1246 (7th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 287 (1974). An employee's contributory negligence is no bar to relief; damages are simply reduced in proportion to the amount of negligence attributable to the employee. 45 U.S.C. Sec. 53.

There is ample evidence in the instant case to support a jury finding of negligence on the part of the Railroad. A security officer employed by the Railroad testified that the wire over which Caillouette claims he tripped was the type generally used by carmen in the yard. He further testified that the ground near the shanty was darkened by oil. Caillouette testified that the coil of wire he tripped over was rusty and consisted of only a few strands, and that he had seen similar wire stored under a stairway leading to the carmen's shanty. The area where Caillouette claims he was injured is controlled by the Railroad and is not open to the public. From this, a jury could reasonably infer that one or more of the Railroad's employees placed the coil of wire next to the shanty or allowed it to remain there, when due care would dictate placing the wire out of harm's way under the stairway or providing some warning of the hazard. While the Railroad argues that the evidence does not exclude all other possible scenarios (e.g., an interloper came onto the property and placed the wire there), this does not detract from the reasonableness of the inference that the wire was there through the Railroad's negligence. We find this case factually similar to Webb v. Illinois Central Railroad, 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d...