Getty v. Boston & Maine Corp., 74-1174

• Decision Date: 15 November 1974
• Docket Number: No. 74-1174,74-1174
• Citation: 505 F.2d 1226
• Parties: George GETTY, Plaintiff-Appellant, v. BOSTON AND MAINE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1226

505 F.2d 1226

George GETTY, Plaintiff-Appellant, v. BOSTON AND MAINE CORPORATION, Defendant-Appellee.

No. 74-1174.

United States Court of Appeals, First Circuit.

Argued Oct. 7, 1974.

Decided Nov. 15, 1974.

James F. Freeley, Jr., Boston, Mass., with whom Louis A. Guidry and Feeney & Freeley, Boston, Mass., were on brief for plaintiff-appellant.

John J. O'Brien, Boston, Mass., with whom John J. C. Herlihy and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on brief, for defendant-Appellee.

Before COFFIN, Chief, Judge, and ALDRICH and CAMPBELL, Circuit judges.

LEVIN H. CAMPBELL, Circuit Judge.

In this FELA action plaintiff appeals from a judgment entered upon a directed verdict in favor of defendant railroad. At the close of plaintiff's evidence the district court ruled that there was nothing upon which a jury could find that plainiff had been within the scope of his employment at the time he was injured. Since such a finding is a prerequisite for recovery under the FELA, 45 U.S.C. 51, the court granted defendant's motion for a directed verdict. Fed.R.Civ.P. 50(a). We affirm.

Appellant was employed by defendant as a carman. His duties consisted of repairing cars and engines of defendant in defendant's engine house located on the boundary line between Charlestown, Massachusetts, and Somerville, Massachusetts. Appellant's workday began at the engine house at 7 a.m. and continued until 3 p.m.; he was not compensated for commuting time. Shortly after 6 a.m. on the day of the accident appellant drove his automobile from his home to defendant's train station in Woburn, Massachusetts, a distance of approximately a quarter of a mile. He intended to board one of defendant's regularly scheduled passenger trains which made a practice of stopping at the engine house to let off railroad employees working there. (The train would then proceed to Boston's North Station to discharge regular passengers.) Appellant had a pass which entitled him to free use of defendant's trains. However, the railroad did not require him to use any special mode of conveyance to and from work, and appellant commuted sometimes by car and sometimes by train.

During the previous night it had snowed heavily, and the deep snow surrounding the Woburn station had not yet been removed when appellant arrived. The new fallen snow lay over packed snow and ice accumulated from previous storms. After parking his automobile, appellant proceeded on foot towards the station platform, but before reaching it he slipped and fell, severely breaking his right leg.

Appellant argues that on these facts, considered in the light most favorable to him, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), a jury could find him to have been in the course of his employment at the time he slipped and fell. He recognizes that this court adopted an apparently contrary construction in Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (1st Cir. 1959). There we held that a railroad employee, injured while riding one of his employer's passenger trains to the place where his work was to begin, was not yet within the scope of his employment for FELA purposes. (Like appellant, Johnson had been furnished a free pass on his employer's trains.) The district court thought that Metropolitan Coal and a Third Circuit case cited therein, Sassaman v. Pennsylvania R.R., 144 F.2d 950 (3d Cir. 1944), controlled the present action.

It is appellant's contention that he comes within an exception implied in Metropolitan Coal for an employee who is 'required to go to work on the defendant's passenger train.' 265 F.2d at 178. ¹ See also Sassaman, supra, 144 F.2d at 953. He argues that the heavy snowfall made alternative routes unavailable, compelling him to utilize defendant's train on the morning of the accident. Thus, he says, he was required to traverse the Woburn station's parking lot as an incident of his employment.

But we do not believe that a commuting railroad worker brings himself within FELA coverage merely by demonstrating that on a given day outside conditions, such as inclement weather, made it impracticable for him to use a means of travel other than his employer's train. The sort of necessity referred to in Metropolitan Coal must, we think, stem more directly from a specific requirement of his job or a specific understanding as to his mode of travel. There will always be circumstances outside the employer's control conditioning an employee's choice: on a particular day the employee's spouse may need the family car, he may lack money to use other transportation when free rail transit is available, the energy shortage may place gasoline in short supply, or he may have chosen to do without a car and live near the station for convenient commutation. While any of these circumstances might make alternative ways of commuting impracticable on a given day, this result must ultimately be attributed to employee decisions over which the employer ordinarily has no control. A rule of exception must yield predictable consequences, and, absent circumstance indicating a special arrangement with one's employer, subjective conditions resulting from employee choices of where to live and how to travel are insufficiently related to employment to determine the coverage of the federal statute.

One commuting to work is ordinarily not deemed to be within the course of his employment. It was determined in Metropolitan Coal that Congress did...