Fleming v. Kellett

• Decision Date: 10 May 1948
• Docket Number: No. 3544.,3544.
• Citation: 167 F.2d 265
• Parties: FLEMING et al. v. KELLETT.
• Court: U.S. Court of Appeals — Tenth Circuit

167 F.2d 265 (1948)

FLEMING et al. v. KELLETT.

No. 3544.

Circuit Court of Appeals, Tenth Circuit.

March 22, 1948.

Rehearing Denied May 10, 1948.

James E. Grigsby, of Oklahoma City, Okl. (Robert E. Lee, of Oklahoma City, Okl., on the brief), for appellant.

W. F. Smith, of Oklahoma City, Okl. (E. B. Glasgow, of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS and MURRAH, Circuit Judges, and VAUGHT, District Judge.

MURRAH, Circuit Judge.

The appellee, a brakeman in the employ of the appellant Railroad Company, brought this suit under the Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries sustained in the course of his employment. The Railroad Company appeals from a judgment for the employee, contending that there is no evidence of negligence proximately causing the injuries.

The appellee alleged that on August 1, 1946, he was employed by the appellant as a brakeman on a freight train; that as the train approached Selden, Kansas, traveling in a southerly direction, he started to descend the ladder on the left side of the engine, preparatory to alighting, in order to inspect the cars of the train as they passed; that when he reached the bottom rung or stirrup of the ladder and started to step off with his left foot, his right foot slipped from the step, leaving him hanging to the side of the engine holding on the grabirons; that he ran alongside the engine for a few steps when some wire, debris or other foreign substance caught his left foot, jerking him loose from his hold on the grabirons with his left hand; that he was dragged alongside the engine, holding with his right hand for some distance, until he was dragged into the north rail of an angling switch track; that as a result, he sustained serious personal injuries, which he described in detail. He alleged that the Railroad Company was negligent in the following particulars: (1) the engineer so roughly handled the train that it jerked and bucked in such a violent manner as to jerk him loose from his foothold on the ladder of the train; (2) by allowing trash, debris and other foreign substance to collect alongside the right of way inside the yards, the Railroad Company failed to provide him with a reasonably safe place to perform his work; and (3) that the Railroad permitted the track and roadbed to be in an "unsafe, narrow, sloping, uneven, loose, insecure and dangerous condition" where the appellee was required to perform his duties as a brakeman; in particular that the ties in this vicinity were old, worn, split and defective, parts of which protruded up and above the surface of the ground.

The answer admitted the appellee's employment as a brakeman in interstate commerce on the date in question, and that he sustained personal injuries in the railroad yard limits of Selden, Kansas, but specifically denied that the injuries were caused by any negligence of the Railroad Company.

At the conclusion of all the evidence, the Railroad Company's motion for a directed verdict was overruled, and the issues of negligence were submitted to the jury on interrogatories, in answer to which the jury found that the locomotive did not give a sudden jerk at the time appellee slipped as alleged; that the roadbed where appellee alighted contained no debris of any sort; and that the ties at the place of the accident were not old and did not protrude unevenly from the roadbed. It did find, however, that the roadbed at the place where the appellee attempted to alight was negligently uneven and insecure, and that such negligence proximately caused appellee's injuries. A verdict for $3,000 was returned, and judgment was entered accordingly. The Railroad's motion to set aside the verdict and for a judgment was overruled, and the clear issue presented by this appeal is, first, whether there was any evidence to support the finding that the roadbed was "uneven and insecure" at the point of the accident, and if so, whether such condition was the legal cause of the accident and resulting injuries.

While conceding its duty to furnish the appellee a reasonably safe place to work — in this case to alight from a moving train — the Railroad Company earnestly contends that there is no evidence of uneveness or insecurity of the roadbed at the point of the accident.

The Federal Employers' Liability Act does not "make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur * * *." Ellis v. Union Pacific Ry. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600; see also Brady v. Southern Ry., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Tiller v. Atlantic Coast Line Ry., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Tennant v. Peoria & Pekin Union Ry., 321 U. S. 29, 64 S.Ct. 409, 88 L.Ed. 520. But it is only...