Metropolitan Coal Company v. Johnson

• Decision Date: 03 April 1959
• Docket Number: 5400.,No. 5399,5399
• Parties: METROPOLITAN COAL COMPANY, Inc., Defendant, Appellant, v. Franklin JOHNSON, Plaintiff, Appellee. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, Defendant, Appellant, v. Franklin JOHNSON, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

265 F.2d 173 (1959)

METROPOLITAN COAL COMPANY, Inc., Defendant, Appellant, v. Franklin JOHNSON, Plaintiff, Appellee.

NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, Defendant, Appellant, v. Franklin JOHNSON, Plaintiff, Appellee.

Nos. 5399, 5400.

United States Court of Appeals First Circuit.

April 3, 1959.

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Paul R. Frederick, Boston, Mass., with whom Peter D. Cole and Badger, Pratt, Doyle & Badger, Boston, Mass., on brief, for Metropolitan Coal Co., appellant.

Noel W. Deering, Boston, Mass., for New York, N. H. & H. R. Co., appellant.

John V. Higgins, New York City, with whom Thomas J. O'Neill, New York City, Joseph P. Coughlin, Boston, Mass., and O'Neill, Higgins & Latto, New York City, on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff-appellee, a citizen of Rhode Island, brought suit in the court below under its diversity jurisdiction to recover for personal injuries allegedly caused by the combined negligence of the defendants-appellants, The New York, New Haven and Hartford Railroad Company and Metropolitan Coal Company, Inc., both Massachusetts corporations. A trial by jury resulted in a verdict for the plaintiff on which the court below, after denying motions by the defendants for judgment n. o. v., entered the judgment for the plaintiff from which the defendants have taken these appeals.

There is no serious dispute over the following basic facts.

The plaintiff, a veteran employee of the defendant railroad, although carried on the rolls as a spare freight conductor, was actually serving on the date of his injury as a flagman on one of the railroad's regularly scheduled freight trains running between Boston, Massachusetts, and New Haven, Connecticut. On the afternoon of February 8, 1950, he boarded an express passenger train of the defendant railroad in Rhode Island to go from his home in that state to join the crew of his freight train in Boston prior to the start of its run to New Haven. As the express train carrying the plaintiff was proceeding over the railroad's main line at a speed of 65 to 70 miles per hour past the defendant coal company's yard located on a siding beside the main line in Forest Hills, a few miles south of Boston, it ran over a manila covered steel cable belonging to the coal company and used by it in connection with a winch to move coal cars on its siding when no locomotive was available. It could readily be found on the evidence, indeed it is reasonably certain and appears to be conceded, that just before the express train reached the scene mischievous boys had taken the cable from where the coal company employees had left it stretched out beside the coal company siding and dragged it across the railroad tracks as a prank. When the front wheels of the train went over the cable a hook weighing about 10 pounds attached to one end of it flew up and shattered the car window beside the plaintiff showering him with broken glass and inflicting the injuries upon him for which he seeks to recover in this action.

At the time of the accident the plaintiff was traveling on a pass issued to him pursuant to a provision in an agreement between the Brotherhood of Railroad Trainmen and the railroad that: "Conductors will be given term passes good between all stations on the district or districts on which they run." On the back of the pass appeared the following statement (the italics are ours):

"This pass is issued and accepted as a gratuity by the person named therein, who further agrees that it forms no part of the compensation for his or her services. Except when used in the performance of service required by the user\'s employment by the Company, the user expressly assumes all risk of accident and of personal injury and loss or damage to property, regardless of their causes, and absolves the Company from all liability therefor. As a condition to its issue, it is declared by the user that such user is not prohibited by law from receiving free transportation, and further that the pass will be lawfully used. This pass will be taken up if presented by any other than the person named therein."

The questions presented on this appeal are whether there is any legally sufficient evidence in the record to warrant a finding that either defendant was causally negligent, and, if there is evidence of the railroad's causal negligence, whether it is liable to the plaintiff therefor under the terms and conditions of the pass on which he was riding. Before we take up these questions, however, we must dispose of a preliminary matter.

The plaintiff's complaint asserts two causes of action; one against both defendants grounded upon their common law negligence and one against the railroad alone grounded upon its liability under the Federal Employers' Liability Act, 35 Stat. 65 (1908), as amended, 45 U.S.C.A. §§ 51-60, and the Federal Safety Appliance Act, 27 Stat. 531 (1893), as amended, 45 U.S.C.A. §§ 116.¹ The court below at the trial indicated that it was "disposed to direct a verdict" for the defendant on the count under the FELA and counsel for the plaintiff thereupon, apparently to save whatever rights his client might have with respect to that cause of action, agreed to withdraw it and was permitted to do so. Counsel for the plaintiff acquiesced in these rulings, and of course the plaintiff has taken no appeal. But this does not dispose of the matter, for it is well established that the Federal Employers' Liability Act, when applicable, is the exclusive remedy against a railroad for injuries to its employees. Camerlin v. New York Central R. Co., 1 Cir., 1952, 199 F.2d 698. Thus disregard of the Act by the parties does not relieve the court of the necessity for determining whether it applies. See Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950.

Prior to the amendment of the FELA in 1939, 53 Stat. 1404, the test to determine whether or not it applied was to inquire whether the employee was "at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it." Shanks v. Delaware, L. & W. R. Co., 1916, 239 U. S. 556, 558, 36 S.Ct. 188, 189, 60 L.Ed. 436. The amendment of 1939, however, abolished the so-called "moment of injury" rule of the Shanks case by making the Act applicable to "Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce * * *." See Southern Pacific Co. v. Gileo, 1956, 351 U.S. 493, 497, 76 S.Ct. 952, 956, 100 L.Ed. 1357. There can be no doubt whatever that when the plaintiff was actually at work for the railroad his duties as an employee were in furtherance not only of interstate, but in all probability also of foreign commerce as well. But, was he employed by the railroad "in such commerce" within the meaning of § 1 of the Act while he was riding to work on the railroad's passenger train? We think this question must be answered in the negative.

It has long been established that the FELA applies not only when an employee is injured while actually engaged in performing duties of the kind required for application of the Act, that is, duties any part of which are in "the furtherance of interstate or foreign commerce," or "in any way directly or closely and substantially" affecting such commerce, but also when an employee is traversing the employer's premises (and perhaps in some circumstances even adjacent premises, see Bountiful Brick Co. v. Giles, 1928, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507), on his way to or from his work. See Erie R. Co. v. Winfield, 1917, 244 U.S. 170, 173, 37 S.Ct. 556, 557, 61 L.Ed. 1057, wherein it is said: "In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment," and further, "Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work, and partook of the character of that work as a whole * * *."

While it can no longer be seriously suggested that an employee of a carrier is covered by the FELA only when he is actually at work on his job, Morris v. Pennsylvania R. Co., 2 Cir., 1951, 187 F.2d 837, 841, we have not found any satisfactory precise verbal formula, and we do not see how any can be laid down, which can be applied automatically to determine the distinction between an employee's activities within and those without the coverage of the Act. See Cudahy Packing Co. of Nebraska v. Parramore, 1923, 263 U.S. 418, 424, 44 S.Ct. 153, 68 L.Ed. 366. Situations of the kind under consideration will have to be resolved as they arise on past decisions and general considerations.

The only case closely in point which has come to our attention is Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950, referred to above and to be mentioned briefly on another point hereinafter. In that case a majority of the full bench of the Court of Appeals for the Third Circuit held that a railroad employee whose actual duties brought him within the coverage of the FELA was not thereby precluded from maintaining an action at common law against his employer to recover for injuries received when he stepped into a hole in the defendant's station platform when alighting from one of its trains which he had taken at the end of his day's work to go from the place of his employment to his home. That case is essentially on all fours with this one (it is of course legally inconsequential whether the employee suffers his injury on his way to work or on his way home), and we think it was correctly decided. Indeed there is little for us to add to the discussion in the Sassaman case of the point we now have under consideration herein. We would like to emphasize two matters, however, which we think are important in deciding the...