Green v. River Terminal Ry. Co.

• Decision Date: 10 June 1985
• Docket Number: No. 84-3401,84-3401
• Citation: 763 F.2d 805
• Parties: Willard GREEN, Plaintiff-Appellant, v. RIVER TERMINAL RAILWAY CO., Third Party Plaintiff-Appellee, Jerald E. Dawson, Third Party Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 805

763 F.2d 805

Willard GREEN, Plaintiff-Appellant, v. RIVER TERMINAL RAILWAY CO., Third Party Plaintiff-Appellee, Jerald E. Dawson, Third Party Defendant.

No. 84-3401.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1985.

Decided June 10, 1985.

Michael J. Occhionero, Beachwood, Ohio, Frank Van Bree, argued, Henslee, Monek & Henslee, Chicago, Ill., for plaintiff-appellant.

Jones, Day, Reavis & Pogue, George J. Moscarino, argued, Thomas Smiele, Thomas Repicky, Dale F. Pelsozy, Cleveland, Ohio, for third party plaintiff-appellee.

Before CONTIE and MILBURN, Circuit Judges, and BROWN, Senior Circuit Judge.

CONTIE, Circuit Judge.

Plaintiff Willard Green appeals the district court's entry of a directed verdict in favor of defendant River Terminal Railway Company (hereinafter RTR) after trial on Green's complaint pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq., and the Locomotive Boiler Inspection Act, 45 U.S.C. Secs. 22, 23. Concluding that the evidence supports the district court's order, we affirm.

I.

The complaint in this case arises out of an incident on September 29, 1978, in which Green, a conductor for defendant RTR, was allegedly assaulted by a fellow employee, Jerald Dawson. ¹ On May 15, 1980, Green filed a complaint against his former employer, RTR, pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 alleging that RTR was negligent in failing to provide a safe work place, in failing to provide adequate protection in the volatile environment created by the strike, and in failing to prevent and warn of the danger of assault from which Green eventually suffered. On February 13, 1984, the district court allowed Green to amend the complaint to allege that RTR violated the Locomotive Boiler Inspection Act, 45 U.S.C. Secs. 22, 23, because, due to a non-functional radio on the engine, Green was required to call the yardmaster from the Harvard Avenue Yard Office where the assault took place. Trial was held March 27 through April 2, 1984, and on April 2, after both parties had presented evidence, the district court directed a verdict in favor of RTR. Judgment was entered on April 17 and Green appealed.

II.

In light of the remedial purposes underlying the FELA, that Act is to be liberally construed in favor of the injured plaintiff. Sowards v. Chesapeake & Ohio Railway Co., 580 F.2d 713, 714 (4th Cir.1978); Gowins v. Pennsylvania Railroad Co., 299 F.2d 431, 433 (6th Cir.), cert. denied, 371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962). Further, the court's power to direct a verdict is restricted in light of those remedial purposes and the legislative desire to preserve the plaintiff's right to a jury trial. Accordingly, in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the Court stated:

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. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. 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 may be drawn that negligence of the employer played any part at all in the injury or death.

Id. at 506-07, 77 S.Ct. at 448-49 (footnotes omitted). In other words, the case is for the jury "whenever fair-minded men" could find liability on the evidence, id. at 508, 77 S.Ct. at 449, and should be taken from the jury only "where fair-minded jurors cannot honestly differ," id. at 510, 77 S.Ct. at 451. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957); Herdman v. Pennsylvania Railroad Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508 (1957); Webb v. Illinois Central Railroad Co., 352 U.S. 512, 516, 77 S.Ct. 451, 454, 1 L.Ed.2d 503 (1957); Mendoza v. Southern Pacific Transportation Co., 733 F.2d 631, 632 (9th Cir.1984) ("only 'slight' or 'minimal' evidence is needed to raise a jury question"); Clark v. Kentucky & Indiana Terminal Railroad, 728 F.2d 307, 310 (6th Cir.1984); Carlton v. M/G Transport Services, Inc., 698 F.2d 846, 847 (6th Cir.1983) (Jones Act); Johannessen v. Gulf Trading & Transportation Co., 633 F.2d 653, 656 (2d Cir.1980); Perkoski v. New York, Chicago and St. Louis Railroad Company, 217 F.2d 642 (6th Cir.1954); Keith v. Wheeling & L.E. Railway Co., 160 F.2d 654, 658 (6th Cir.), cert. denied, 332 U.S. 763, 68 S.Ct. 67, 92 L.Ed. 348 (1947). See also Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 32-35, 64 S.Ct. 409, 411-413, 88 L.Ed. 520 (1944). Compare Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980) (Jones Act) ("a directed verdict is possible 'only when there is a complete absence of probative facts' supporting the nonmovant's position."); Fritts v. Toledo Terminal Railroad Co., 293 F.2d 361, 362 (6th Cir.1961) ("the question for this court is whether there was a complete lack of probative facts").

This court has held that:

the contentions of the parties and inconsistencies in the proof are not for the trial judge to resolve but for the jury under proper instructions. [However,] [i]t is still the function of the trial judge within narrowly prescribed limits of the statutes herein to pass upon the sufficiency of the evidence....

Fritts, 293 F.2d at 363. For while "disbelief ... [in] testimony would not supply a want of proof," Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 576, 71 S.Ct. 428, 430, 95 L.Ed. 547 (1951), "[s]peculation cannot supply the place of proof," id. at 578, 71 S.Ct. at 430. As in considering all motions for directed verdict, the evidence is viewed in the light most favorable to the nonmovant. Mendoza, 733 F.2d at 633; Lambert v. Morania Oil Tanker Corp., 677 F.2d 245, 247 (2d Cir.1982) (Jones Act); Cullinan v. Burlington Northern, Inc., 522 F.2d 1034, 1036 (9th Cir.1975); Rodriguez v. Delray Connecting Railroad, 473 F.2d 819, 820 (6th Cir.1973).

Case law makes clear, however, that although the power to grant directed verdicts is restricted in FELA actions, directed verdicts are frequently proper in particular cases. Inman v. Baltimore & Ohio Railroad Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Euresti v. Washington Terminal Co., 280 F.2d 629, 630 (D.C.Cir.1960); Perkoski, 217 F.2d 642. We conclude that this is one such case. ²

A.

45 U.S.C. Sec. 51 provides in pertinent part:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia and any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

In order to recover pursuant to the FELA, a plaintiff must show

that he was injured while in the scope of his employment, which employment is in furtherance of the railroad's interstate transportation business, that his employer was negligent, and that his employer's negligence played some part in causing the injury for which compensation is sought under FELA.

Sowards, 580 F.2d at 714; Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Moore, 340 U.S. at 575, 71 S.Ct. at 429; Urie v. Thompson, 337 U.S. 163, 174-77, 69 S.Ct. 1018, 1026-28, 93 L.Ed. 1282 (1949); Armstrong v. Kansas City Southern Railway Co., 752 F.2d 1110, 1113 (5th Cir.1985); Mendoza, 733 F.2d at 632; Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976); Rodriquez, 473 F.2d at 820; Tyree v. New York Central Railroad Co., 382 F.2d 524, 527 (6th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Sano v. Pennsylvania Railroad Co., 282 F.2d 936, 937-38 (3d Cir.1960); McCracken v. Richmond, Fredericksburg and Potomac Railroad Co., 240 F.2d 484, 487 (4th Cir.1957); Perkoski, 217 F.2d 642. Employer liability under the Act clearly extends to injuries caused by fellow employees. Sinkler, 356 U.S. at 330, 78 S.Ct. at 762.

"[R]easonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence." Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Harrison v. Missouri Pacific Railroad Co., 372 U.S. 248, 249, 83 S.Ct. 690, 690, 9 L.Ed.2d 711 (1963); Scocozza v. Erie R. Co., 171 F.2d 745, 746-47 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949); Rubley v. Louisville & Nashville Railroad Co., 208 F.Supp. 798, 802 (E.D.Tenn.1962). "[A] railroad is guilty of negligence if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct." Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C.Cir.), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Sowards, 580 F.2d at 715. In...