Nicholson v. Erie Railroad Company

• Decision Date: 08 April 1958
• Docket Number: Docket 24717.,No. 172,172
• Citation: 253 F.2d 939
• Parties: Elizabeth E. NICHOLSON, Plaintiff-Appellant, v. ERIE RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

253 F.2d 939 (1958)

Elizabeth E. NICHOLSON, Plaintiff-Appellant, v. ERIE RAILROAD COMPANY, Defendant-Appellee.

No. 172, Docket 24717.

United States Court of Appeals Second Circuit.

Argued February 13, 1958.

Decided April 8, 1958.

George Schylinski, New York City, for plaintiff-appellant.

J. Roger Carroll, New York City (Davis, Polk, Wardwell, Sunderland & Kiendl, New York City on the brief), for defendant-appellee.

Before HINCKS and LUMBARD, Circuit Judges, and DIMOCK, District Judge.

DIMOCK, District Judge.

Plaintiff appeals from a judgment dismissing the complaint at the close of the entire case. The complaint was dismissed for failure to make out a claim under the F.E.L.A. Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. sec. 51 et seq.

Plaintiff, an employee of defendant Erie Railroad, seeks to recover damages for personal injuries suffered when a passenger on one of defendant's trains struck her leg with something like a suitcase which he was carrying. Plaintiff's theory is that because of defendant's failure to afford her toilet facilities she was forced to and did use for that purpose the lavatory in the car in which she was injured.

Plaintiff's post of duty was in the Jersey Avenue Car Shops in the Jersey City yards. She lived in Bloomfield, N. J., and was accustomed to travel back and forth on defendant's trains, using the Jersey City station. She was the only woman employee in the shops and there was no women's toilet so that she was accustomed to use the lavatory in any one of the cars standing on tracks adjoining the shop awaiting use. If there were no cars there she would "go to Eleventh Street, where 519 was — go down and use the toilet facilities in there." She had protested against this state of affairs but it had obtained all of the twenty-nine years while she had been employed there. On December 31, 1947, she was excused early at 2:30 p.m. She would have taken a bus to the station from whence her train would leave except that she wanted to use the toilet and so she went into the yard where she knew there were trains. The foreman of the yard brought her to empty train 27 and told her that it was going right down to the station. The train would thus serve a double purpose for her. She got into one of the cars, left her pocketbook and bag on a seat opposite the lavatory and went in. By the time she came out the train had started and reached the station and passengers were jumping on while it was going. She waited until the train had stopped and no more passengers were coming in and then reached across for her pocketbook and bag and was then struck by something carried by one of the passengers who had previously boarded the train. She fell and was injured.

To render defendant liable it must have violated some duty. The violation of duty here claimed to exist is the failure to supply women's toilet facilities in the shop. If we were to apply the conventional law of negligence plaintiff would clearly be without right of recovery. At common law, in a case such as this, a defendant is negligent only when his conduct involves an unreasonable risk of subjecting the plaintiff to the hazard from which the harm results. Restatement, Torts § 281(b), Comment e.

We are of opinion that, even if there was evidence sufficient to take the question of negligence to the jury under the F.E.L.A. — which we do not decide — still the court below was correct in dismissing at the close of the evidence. The causation requisite for recovery under the F.E.L.A. is lacking.

It is true that, to impose liability on the defendant, the negligence need not be the proximate cause of the injury. The F.E.L.A. has its own rule of causation. The injury need only be one "resulting in whole or in part" from the negligence....