McGivern v. Northern Pac. Ry. Co.

• Decision Date: 26 December 1942
• Docket Number: No. 12331.,12331.
• Citation: 132 F.2d 213
• Parties: McGIVERN v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

132 F.2d 213 (1942)

McGIVERN v. NORTHERN PAC. RY. CO.

No. 12331.

Circuit Court of Appeals, Eighth Circuit.

December 26, 1942.

COPYRIGHT MATERIAL OMITTED

William H. DeParcq, of Minneapolis, Minn., for appellant.

Frederic D. McCarthy, of St. Paul, Minn. (L. B. daPonte, of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment in favor of appellee in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the death of Ray P. McGivern, a switchman, who received injuries resulting in his subsequent death while in the employ of appellee in its switch yards at Staples, Minnesota. It will be convenient to refer to the parties as they were designated in the lower court.

Plaintiff is the special administratrix of the estate of Ray P. McGivern, deceased, while defendant is a railway company engaged in interstate commerce with yards at Staples, Minnesota. McGivern, plaintiff's intestate, at the time of receiving his fatal injuries was employed by defendant as a switchman in its yards at Staples, Minnesota. These yards comprise 26 tracks which extend in a general easterly and westerly direction. The main line tracks were located north of the yards. The yard tracks were numbered from the north to the south. At the easterly and westerly ends, respectively, of the yards lead tracks connect with the yard tracks by various switches. The depot and round house were located at the easterly end of the yards, about a mile from where the accident occurred. The yard office was about four blocks westerly from the depot and at the extreme west end of the yards there was a hump shanty. At about 11:30 P.M. on November 22, 1940, the switch crew, consisting of McGivern as switch foreman, and Martin and Jaeger as switchmen, began work. When a crew goes on duty it generally obtains the switch engine at the roundhouse. On this occasion the engine crew consisted of Fitzgerald, engineer, and Schroeder as fireman. McGivern was an experienced switchman having worked for defendant for about 20 years. The foreman receives somewhat higher wages than the other members of the switch crew. He stays with the engine most of the time, performs the same duties as the other members of the crew but in addition has the switch list marked to show where every car is to go, which he studies as he can. On this night the crew was busy up to the time of the accident, which occurred at 4:10 A.M. It had snowed the afternoon and early part of the night of November 22, and when the crew went on duty there were five or six inches of wet, sticky snow covering the yards. Just when it ceased snowing is not very clear from the evidence, there being some evidence that it was snowing up to the time when the men went on duty and continued until 2 A.M. We think the exact time of cessation not material. There was testimony that when the crew got the engine there was snow on all the footboards. There are two of these footboards at either end of the switch engine, each being 3 feet long, 1 foot wide and 1½ inches thick. During the progress of the switching process this freshly fallen soft snow was tracked on to the footboards by the feet of the members of the crew by their repeatedly stepping into the snow and then back on to the footboards. At the time of the accident there were ridges and bumps of ice and packed snow varying from 1 to 4 inches in thickness, formed by the switchmen on the right front footboard. This footboard was on the engineer's side of the engine and was used more than the others. Jaeger removed this snow and ice from the footboard between 1:30 and 2:00 A.M., but these ridges and bumps of packed snow and ice again accumulated after that. McGivern was on the right front footboard when the accident occurred. When the switch engine was going east he stepped on to track 11 to couple on to and pull out a cut of about 34 cars. Jaeger and Martin, the other switchmen, were either in or near the hump shanty. When last seen before the accident McGivern was standing near the outer edge of the right front footboard with his left arm around the grab iron holding the switch list in his right hand, looking at it by the light of his lantern. His lantern was on the step or pilot where it was found after the accident. Just before the accident he gave the engineer a back up signal with his lantern. While the switch engine was moving east on track 11 it met and passed an outbound freight train, #605, on track 13. When the engine was backing west on track 11 at a speed of from 3 to 5 miles per hour, the engineer and fireman heard McGivern "holler". The engineer stopped the engine within a distance of 15 or 20 feet. McGivern was found lying between tracks 11 and 12. Marks on the snow indicated that he had been dragged 16 or 17 car lengths. He said he had hung on to a rod. He was taken to a hospital and died on the operating table from secondary shock.

Defendant moved for a directed verdict at the close of all the testimony, which motion was denied, and the court submitted the case to the jury on three grounds of alleged negligence on the part of the defendant: (1) failure to provide a reasonably safe place in which to work by allowing ridges and hummocks of ice to accumulate on the footboards; (2) failure to furnish proper equipment and material to remove snow and ice from the footboards; (3) failure to adopt any rule or custom and practice requiring removal of accumulation of snow and ice from the footboards.

The jury returned a verdict in favor of plaintiff for $6,825.00. Defendant then moved for judgment notwithstanding the verdict upon the grounds urged in support of its motion for a directed verdict. This motion was granted, the verdict and judgment in favor of plaintiff were set aside, and judgment entered for defendant.

On appeal plaintiff contends that the court erred in granting defendant's motion for judgment notwithstanding the verdict in that the evidence showed that a cause of action for recovery on the above enumerated grounds of alleged negligence had been established. There is a preliminary contention by the plaintiff to the effect that the scope of review is limited because of certain procedural defects, it being urged that there was no motion for a new trial, and that defendant has by reason of its failure to except to the instructions, waived its right to question the law as therein declared. But the defendant is not appealing nor otherwise assailing the judgment. It simply asserts that the judgment appealed from is correct and ought not to be disturbed. The burden is on the plaintiff as appellant to show that the judgment as entered was based on prejudicial error. If the judgment is correct as entered then it ought to be affirmed regardless of the reasons or grounds which may have been given by the lower court for its entry. The motion for judgment, notwithstanding verdict, should not be granted unless the party against whom it is made has failed to make a case and a verdict in his favor should have been set aside. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. Likewise, where a motion for a directed verdict has been interposed the question is whether there is any substantial evidence to support a verdict. In reviewing an order granting such a motion the appellate court must accept as true the evidence in favor of the party against whom it was granted and give him the benefit of all favorable inferences that may reasonably be drawn therefrom. If the evidence so considered is such that reasonable men might reach different conclusions, the case is one for the jury. Champlin Refining Co. v. Walker, 8 Cir., 113 F.2d 844. The Federal Employers' Liability Act abolished certain defenses so far as common carriers engaged in Interstate Commerce are concerned, which were recognized at common law, in favor of an employer when sued for personal injuries received in the course of employment by an employee. Thus it abolished the defense embodied in the fellow servant rule; the defense of contributory negligence and the defense of assumption of risk. Minneapolis, St. P. & S. S. M. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766; Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755. A right of recovery, however, must be predicated upon negligence, and in the absence of such negligence recovery cannot be had. Northwestern P. R. Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; Baltimore & O. R. Co. v. Berry, 286 U.S. 272, 52 S.Ct. 510, 76 L.Ed. 1098; Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475; Chesapeake & O. R. Co. v. Stapelton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861.

The common law rules for determining negligence on the part of an employer towards his employee are controlling on the question as to what constitutes negligence within the meaning of the Federal Employers' Liability Act, unless by the terms of the Act common law rules are abrogated. We are not here concerned with any act containing such abrogation or qualification. The rule applicable to all duties arising between the employer and the employee is the requirement to exercise reasonable or ordinary care in view of all the circumstances. Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513. Generally speaking it may be said that the defense available in this class of action is that the employer was free from negligence proximately causing the injury. Having in mind these general principles we turn to a consideration of plaintiff's contentions. It is first urged that defendant was negligent in that it failed to furnish McGivern with a safe place...