McCracken v. Richmond, Fredericksburg & Potomac R. Co.

• Decision Date: 07 January 1957
• Docket Number: No. 7312.,7312.
• Citation: 240 F.2d 484
• Parties: John B. McCRACKEN, Appellant, v. RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

240 F.2d 484 (1957)

John B. McCRACKEN, Appellant, v. RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY, Appellee.

No. 7312.

United States Court of Appeals Fourth Circuit.

Argued November 30, 1956.

Decided January 7, 1957.

Wesley E. McDonald, Washington, D. C. (B. Austin Newton, Jr., Washington, D. C., on the brief), for appellant.

Armistead L. Boothe, Alexandria, Va. (Wirt P. Marks, Jr., Richmond, Va., and Boothe, Dudley, Koontz & Boothe, Alexandria Va., on the brief), for appellee.

Before SOPER and SOBELOFF, Circuit Judges, and CHESNUT, District Judge.

SOBELOFF, Circuit Judge.

The sole question on this appeal concerns the propriety of the District Judge's granting, at the conclusion of the plaintiff's evidence, a directed verdict for the defendant railroad company and ordering a dismissal of the suit.

The appellant was employed as a car repairman helper at the Potomac Yards of the Richmond, Fredericksburg and Potomac Railroad Company, at Alexandria, Virginia. According to the plaintiff's evidence, while he was carrying a journal box weighing approximately eighty-seven pounds, his right heel sank into the soft ground to a depth of approximately two and one-half or three inches and struck a clinker embedded below the surface and described at one time as approximately three inches long and two and one-half or three inches thick, and at another time as the size of a golf ball. This caused him to fall and he suffered injuries to his back, for which he brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., on the theory that the defendant had violated its duty of providing him a reasonably safe place to work.

The plaintiff testified to the condition of the earth in the area: that there were, within seventy-five feet of the point where he was injured, gullies eight inches wide and six inches deep; that the ground where he fell was "very soft and fluffy"; that this condition had existed for some time and was known to the employer and other employees. The deposition of a witness of the plaintiff, Owens, was in some measure to the same effect. However, Sellers, another witness called by the plaintiff, who was also employed by the railroad, replied affirmatively when asked by the defense lawyers if the ground was not soft and dangerous, but "perfect, flat, hardpacked, and well maintained." Thereupon, counsel for the appellant claimed surprise, renounced the witness, and undertook to cross-examine with a view to showing that he had made statements out of court contrary to the testimony given by him in court.

At the conclusion of the plaintiff's case, the District Judge granted a motion for a directed verdict in favor of the defendant. In explaining this action, the Court said: "If this case went to the jury and the jury found for the plaintiff, it would have nothing to support its verdict."

More in detail, the Court added that the testimony did not show a dangerous condition or an unsafe place to work, and that even if the condition were dangerous, there had been no showing of negligent maintenance in allowing the dangerous condition to exist long enough to charge the railroad with knowledge and to enable it to make repairs. The Court added: "Assuming that the condition was apparent, the evidence of the plaintiff is that it was maintained with regularity, even daily; and that certainly shows no negligence."

This latter statement apparently referred to the testimony of the witness Sellers, but the plaintiff's testimony and Owens' deposition gave a conflicting version which, if believed, did tend to show that a dangerous condition had been permitted by the defendant to continue for a considerable time.

It may be true that the witness Owens did not testify to a dangerous condition in the exact spot where the plaintiff was injured, but he did testify to the condition in the general area. The defendant argued that Owens' description related to conditions some distance away and did not support plaintiff's claim, for Owens thought the accident was on track number two rather than track number five; while plaintiff argued that this testimony did shed light on the conditions generally prevailing and tended indirectly to corroborate plaintiff's testimony as to disrepair at the point of the plaintiff's fall. Furthermore, the appellant says that Owens was counting from the opposite end, in which case what he called track number two was actually track number five, the place of the accident. These were issues that the jury could weigh, as the testimony was susceptible to various answers.

The appellee recognizes that in ruling on a motion for a directed verdict, the Court's obligation is to accept as true the interpretation of the facts which is most favorable to the plaintiff and all inferences which may reasonably be drawn from such facts when viewed in the light most favorable to him. Garrison v. United States, 4 Cir., 62 F.2d 41; George v. Leonard, 4 Cir., 169 F. 2d 177; Baltimore & Ohio Railroad Co. v. Postom, 85 U.S.App.D.C. 207, 177 F. 2d 53. The appellee contends, however, that the testimony, even when so viewed, did not disclose a breach of duty on its part.

It is not disputed that the railroad is not an insurer of the employee's safety; that the mere happening of the injury raises no presumption of negligence, and that there can be no recovery in the absence of proof of negligence. Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547; Webb v. Illinois Central Railroad Co., 7 Cir., 228 F.2d 257; Chicago & North Western Railway Co. v. Payne, 8 Cir., 8 F.2d 332. We think, however, that the testimony of the plaintiff and his witness Owens, if believed, could be regarded by the jury as showing a dangerous condition of disrepair in the place where the plaintiff was required to work and that the railroad had negligently permitted such condition to continue without making repairs for a long time — two years, according to...