Missouri-Kansas-Texas Railway Company v. Hearson

• Decision Date: 14 April 1970
• Docket Number: No. 407-69.,407-69.
• Citation: 422 F.2d 1037
• Parties: MISSOURI-KANSAS-TEXAS RAILWAY COMPANY, a corporation, Appellant, v. Oscar HEARSON, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

422 F.2d 1037 (1970)

MISSOURI-KANSAS-TEXAS RAILWAY COMPANY, a corporation, Appellant, v. Oscar HEARSON, Appellee.

No. 407-69.

United States Court of Appeals, Tenth Circuit.

March 13, 1970.

Rehearing Denied April 14, 1970.

James J. Lysaught, Kansas City, Kan. (James R. Goheen, Kansas City, Kan., on the brief) for appellant.

Payne H. Ratner, Jr., Wichita, Kan., (Richard R. Barnes, Wichita, Kan., on the brief) for appellee.

Before MURRAH, Chief Judge, and HILL and HICKEY, Circuit Judges.

HILL, Circuit Judge.

This personal injury suit was brought by appellee Hearson against appellant railroad, known as the Katy, pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. The trial court determined as a matter of law that Hearson was an employee of the Katy for purposes of a FELA action, and the questions of the employer's negligence and of proximate cause were submitted to the jury. The jury awarded appellee Hearson $7,500 in damages for his injury. Appellant railroad appeals, asserting: 1) Appellee failed to prove by sufficient evidence any negligence on the part of the Katy railroad which caused appellee's injury in whole or in part; and 2) the trial court erred in determining as a matter of law that Hearson was an employee of the Katy at the time of his injury, and that the railroad's car-cleaning contract is void under 45 U.S.C. § 55 as an agreement the purpose of which is to exempt the railroad from FELA liability.

The facts are these. Oscar Hearson began working for the Katy in the early 1940's. From time to time his position with the Katy changed, and eventually he became a car-cleaner. This was his job with the railroad when, in 1957, it became necessary for the railroad to lay off a large number of men. Appellee was among the men laid off because at that time the Katy ceased doing its own car-cleaning and contracted it out. The Katy then contracted with one John Souter to do the car-cleaning previously done by the Katy's employees, including appellee, at the railroad's Parsons, Kansas yards. The contract was for an indefinite term subject to termination only upon 30 days notice by either party.

When Souter entered into the car-cleaning business in January of 1958, he hired laborers to clean the railroad's cars and appellee Hearson was hired by Souter in February of that year. Having previously been a car-cleaner in the same yards, appellee needed no instruction and went right to work cleaning the cars just as he had before the Katy laid him off. The only difference to him was that he had to furnish his own bar and hammer whereas before the Katy had supplied them, and he was being paid by Souter. In addition to paying wages and concomitantly withholding taxes and Social Security, Souter provided his car-cleaning employees with brooms and shovels. There too was testimony that Souter also bought two trucks and a front-end loader which, among other jobs, he used to haul away debris accumulated after the railroad cars were cleaned. When the Katy did its own car-cleaning, it furnished all of the necessary tools to its employees. Other than these points there was no change in the car-cleaning operation as it existed prior to Souter's contract with the Katy. Appellee's duties as a car-cleaner remained the same insofar as he was to remove steel anchor plates, cut any bands hanging from the ceiling, pull nails from door posts, clean out trash and sweep out the cars.

Appellee continued in this capacity as a car-cleaner until February 14, 1966, when he was injured while attempting to open a door on one of the Katy's hydra-frame cars. Appellee described the circumstances of the injury beginning with being informed by the yardmaster that there was a car out on the Katy's cleaning track that needed cleaning. Appellee approached the car from the west side and saw that it had a car seal on the west side door. Since he was not supposed to break the seal on loaded cars, appellee went to the other side of the car to see if he could open the door on that side to determine whether the car was unloaded and could be cleaned. There was no seal on the east door so appellee attempted to raise a metal latch preparatory to sliding the door open. The latch which released the door was tight so appellee tapped it with his hammer. There was testimony that the latches often required such a tap to get them to slide into a position from which the door could be opened. In this instance, the tap did not release the latch; appellee had to hit the latch harder and harder. Finally he hit it hard enough to get it to release. While hammering on this latch, something hit appellee in the eye which later turned out to be a piece of metal. Subsequently Hearson all but lost his sight in that eye.

The hammer which appellee used was placed in evidence to show that the metal fragment did not come from the hammer. Appellee's evidence further showed that a properly operating door opens with at most a slight tap on the latch to release it. Appellee's expert witness was asked about the fact that the latch had to be hammered very hard and the door had to be pried open with a bar once the latch was released. He testified that the door was not rolling on its rollers and it would have to be that the side of the car to which the door passes to was bulged out; that often the commodities loaded in the car will push the car side out of shape in transit, and if the door post is bulged out the door is pinched so that it will not move; that this also puts pressure on the release latch which holds the door; and, it is almost impossible to get the door back in shape without going to the repair shop.

There was testimony that prior to 1957 the Katy employed from 12 to 14 car inspectors on each shift, but after 1957 this number was reduced to 3 car inspectors on each shift. Previously 4 inspectors were assigned to each train, but after 1957 2 inspectors were assigned to each train. The car inspectors inspected for defects which would penalize the railroad under I.C.C. rules and did not inspect for defective doors. Also, after an inspection the car would be sent to the cleaning track.

Appellant moved for a directed verdict at the close of plaintiff's evidence and at the close of all evidence; the Katy also moved for a new trial after the jury's verdict for appellee. The motions were denied by the trial judge, and appellant Katy has taken this appeal making the same arguments as urged before the trial judge.

We deal first with appellant's argument that appellee's evidence taken in its best light failed to establish any act of negligence on the part of the Katy, and consequently it was error to deny appellant's motion for a directed verdict and submit the issue to the jury. Appellant urges us to review the record and conclude that it is devoid of evidence showing either the existence of a duty on the part of the railroad or the breach of a duty. Appellant would also contend that if there was a duty breached, there is insufficient evidence to causally relate it to the injury.

At the outset we note that this is not an ordinary negligence case in which plaintiff must prove fault by a preponderance of the evidence. Rather, this is a statutorily-created action which imposes on the plaintiff the burden of showing only slight negligence.¹ Thus, when considering defendant's motion to dismiss in a FELA case, the trial judge's single inquiry is "whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death." Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 506-507, 77 S. Ct. 443, 449, 1 L.Ed.2d 493 (1957). If that test is met, the judge is bound to find that a case for the jury is made out. Upon appeal of the order denying dismissal, the search of an appellate court is necessarily limited to a search for minimal evidence which could support a finding of the employer's negligence. And, because a statutory action under FELA significantly differs from a common law negligence action in terms of standard of proof,² it naturally follows that when an appellate court is asked to overturn the jury's verdict in a FELA case, we need only look to see if the evidence is completely devoid of probative facts which support the conclusion reached.³ With this in mind, we first point out — and there can be no argument on this — that the railroad has a duty to furnish its employees with a reasonably safe place to work. Thus the only real questions on the evidence are whether there was sufficient evidence of a breach of that duty and whether that breach was the or a proximate cause of the injury. The record shows that the railroad did inspect the incoming cars, but only for penalty defects. Moreover, the number of inspectors on each shift was cut drastically after the general layoff of employees in 1957. To some extent the reduction in inspectors was in proportion to the reduced traffic through the Katy's Parsons yards, but there is a clear inference in the testimony that the assignment of two inspectors to each train after 1957 was inadequate to do the job previously done by four inspectors. We think the evidence, when considered most favorably to plaintiff-appellee, was susceptible of an inference of negligence for failure to provide a reasonably safe place to work when measured by standards of due care commensurate to the dangers of the business.⁴ It is for the jury to decide whether the inspections or lack thereof satisfied the Katy's duty to provide Hearson with a safe place to work.⁵

In disposing of the question of whether there was sufficient evidence of a causal relation between the railroad's negligence and appellee's injury, we need only pause to reiterate the Supreme Court's words in Rogers v. Missouri P. R. Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493 (1957): "Under this statute FELA the test of a jury case is simply whether the proofs justify with reason the...