Eaton v. Long Island Rail Road Company

• Citation: 398 F.2d 738
• Decision Date: 28 May 1968
• Docket Number: Docket 31970.,No. 422,422
• Parties: Robert T. EATON, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

398 F.2d 738 (1968)

Robert T. EATON, Plaintiff-Appellee, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant.

No. 422, Docket 31970.

United States Court of Appeals Second Circuit.

Argued April 10, 1968.

Decided May 28, 1968.

Henry J. O'Hagan, New York City (Edward G. Dougherty, Peter M. J. Reilly, New York City, on the brief), for plaintiff-appellee.

Paul J. Donnelly, Jr., Jamaica, N. Y. (George M. Onken, Jamaica, N. Y., on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The question before us on this appeal is a recurring one in litigation under the Federal Employers' Liability Act "FE LA", 45 U.S.C. § 51 et seq. — Was there sufficient evidence of the defendant's negligence to warrant submitting the case to the jury?

The pertinent evidence before the jury can be briefly summarized. The principal witness at the trial was plaintiff Robert T. Eaton, a car repairman welder in the Morris Park Truck Shop of the defendant Long Island Rail Road Company "railroad". He testified that it was his job to burn off worn parts from the undercarriages or "trucks" of railroad cars with either an acetylene torch or electric welding machine.¹ The undercarriages were apparently placed on tracks running over large pits that were approximately 200 feet long and 38 inches deep.² The pit in which Eaton worked was not provided with a ladder, concrete steps or other means of egress, and, because of the nature of the activity and the general conditions in the railroad yard, was covered with oil and grease.

Eaton testified further that some of the workmen left the pit by crawling out over the top. This method was impractical for him, however, because as a user of flame emitting equipment it was necessary for him to remain as free as possible of the oil and grease that pervaded the pit. Accordingly, on May 31, 1963, the day of the accident, Eaton attempted to leave the pit by taking hold of two appurtenances on the truck frame and lifting himself up by extending his right foot to the top of the pit and pushing upward with his left foot. This maneuver placed great pressure on the right leg and as he came up to a sitting position he heard his right knee "click." It later developed that Eaton had suffered an internal derangement of the knee joint; he required extensive medical treatment including hospitalization and surgery on two occasions. One of the operating doctors testified that the injury to the knee could have resulted from climbing out of a pit in the manner described.

As argued to the jury by counsel for both parties, the crucial factual issue was whether the railroad had provided Eaton with a safe place to work and an adequate, non-hazardous means of leaving the pit.³ Thus, Eaton maintained that the pit should have been provided with either steps or a ladder and placed great emphasis on the fact that he had previously complained about the absence of steps. He also claimed that comparable pits in the Morris Park yard had steps.⁴ Counsel for the railroad saw the issue before the jury in much the same light. He told the jury that:

"If you believe that a man who worked there in the yards for eight years and did not know how to get in and out of those pits and that, madam and gentlemen, that is the end of the world as far as I am concerned.

"You heard the testimony in here, I believe, about some ladders. I submit if the railroad put ladders in the pit, the ladder is going to be covered with grease and we will have people falling off the ladders."

In addition, he suggested to the jury that Eaton should have used allegedly available wooden blocks as steps to leave the pit.⁵ The experienced trial judge submitted the case to the jury on careful instructions that posed in a clear and precise manner the issue as argued by the parties:

"He Eaton says that it the pit was greasy and oily; that he used a method of getting out by which he held himself by some protrusion of the truck of the railroad car and then brought his leg up to the top of the pit and that as he did that, the increased pressure caused the injury.

"In effect, he says, in more legalistic language, that the Rail Road sic failed to provide a safe place to work, in that it failed to provide a safe means of egress from the pit. That is a fact question for you."

On this record, the jury found the railroad negligent and set the amount of Eaton's damages at $36,000. The jury also determined, however, that Eaton had been contributorily negligent and, in accordance with the provisions of the FELA, 45 U.S.C. § 53, diminished the amount of his recovery by 25 per cent. Judgment for Eaton in the amount of $27,000 was then entered and this appeal followed.

Before considering the arguments presented by the defendant railroad, it is well to clarify the unique role of an appellate court in reviewing the evidentiary basis for a jury verdict in an FELA case. While the issue continues to arouse a good deal of heat, certain relatively clear principles have emerged from the controversy. The FELA is not a workmen's compensation statute for, as we recently had occasion to note, evidence of defendant's negligence is required and "it is fundamental * * * that the fact an employee is injured is not proof of negligence of the carrier." Kuberski v. N. Y. Central R. R. Co., 359 F.2d 90, 93 (2d Cir. 1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967). See also Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 577-578, 71 S.Ct. 428, 95 L.Ed. 547 (1951); Gill v. Pa. R. Co., 201 F.2d 718, 720-722 (3d Cir.), cert. denied, 346 U.S. 816, 74 S.Ct. 27, 98 L.Ed. 343 (1953). A reading of the cases makes manifest, however, that the FELA has been construed as an avowed departure from the rules of the common law and as imposing "special features" with respect to the standard of negligence that is significantly different from that found in ordinary negligence actions. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 509, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). See also Shepard v. New York, N. H. & H. R. Co., 300 F.2d 129 (2d Cir. 1962); Gill v. Pa. R. Co., supra; Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 564, 77 S.Ct. 459, 1 L.Ed.2d 515 (1957) (opinion of Harlan, J., dissenting); Prosser, Torts § 82, p. 560 (3d ed. 1964); Funkhauser, What Is a Safe Place to Work, 17 Ohio St.L.J. 367, 369-70 (1956). As the Supreme Court stated in Rogers, supra, 352 U.S. at 506-507, 77 S.Ct. at 448:

"Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion can be drawn that negligence of the employer played any part at all in the injury or death."

Thus, there can be no doubt that "under the Act, the right of the jury to pass upon the question of fault and causality must be most liberally viewed." Chicago, R. I. & P. R. R. Co. v. Melcher, 333 F.2d 996, 999 (8th Cir. 1964). Compare Atlantic Coast Line R. R. v. Floyd, 227 F.2d 820, 822 (4th Cir. 1955) (recognizing the "manifest unwillingness" of the Supreme Court to sanction the taking of FELA cases from the jury).

With these precepts in mind, we turn to the railroad's principal contention, that there was no evidentiary basis for the jury's conclusion and that consequently the case should not have been submitted to the jury. In light of the applicable standard of review, we hold that there was sufficient evidence to support the jury's verdict.

On the evidence before it the jury could appropriately conclude that it was negligent for the railroad to fail to provide workmen who had to remain free of highly combustible material with a safe means of egress from the pit. Complaints had been made because of the absence of steps, other comparable pits had stairs and no satisfactory reason appeared why safety precautions were not taken in the pit in which the accident occurred.⁶ Moreover, in evaluating the defendant's conduct the jury could take into consideration the ease and presumably small expense of installing in the pit stairs, a ladder or some other safe means of egress. In determining whether a course of conduct is reasonable, the probability and gravity of injury must be balanced against the ease of taking effective preventive measures. Cf. Boston & Maine R. R. v. Meech, 156 F.2d 109 (1st Cir.) (locomotive handled in usual and customary manner could have been operated more carefully), cert. denied, 329 U.S. 763 (1946); Prosser Torts, supra, at § 33, p. 170; Funkhauser, supra, 17 Ohio St.L.J. at 371.

Nevertheless, the railroad maintains that the judgment below should be reversed because Eaton failed to introduce evidence of the practice of other railroads in providing means of egress from working pits. But it is well settled that industry practice is not the universal measure of due diligence. See Kuberski v. N. Y. Central R. R. Co., supra, 359 F.2d at 93; Boston & Maine R. R. v. Meech, supra; The T. J. Hooper, 60 F.2d 737, 740 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932).⁷ Indeed, we know of no reason why the jury should not be deemed capable of determining on the basis of "common experience," Rogers v. Missouri Pacific R. Co., supra, 352 U.S. 503, 77 S.Ct. 443, 12 L.Ed.2d 493, whether the railroad acted in a reasonable manner in failing to provide alternative means of egress from the pit. The matter does not appear to be highly technical and, if the uninstructed judgment of lay members of the community was likely to prove erroneous because of some subtle reason, the railroad...