Nivens v. St. Louis Southwestern Railway Company, 28251.

• Decision Date: 20 May 1970
• Docket Number: No. 28251.,28251.
• Parties: Don NIVENS, Plaintiff-Appellee, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 114 (1970)

Don NIVENS, Plaintiff-Appellee, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 28251.

United States Court of Appeals, Fifth Circuit.

April 16, 1970.

Rehearing Denied May 20, 1970.

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Jack W. Flock, Clyde W. Fiddes, Roy Cosper, Tyler, Tex., for defendant-appellant.

Franklin Jones, Jr., Franklin Jones, Sr., Marshall, Tex., for plaintiff-appellee.

Before WISDOM, GOLDBERG and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge.

The St. Louis Southwestern Railway Co. (the railroad) appeals from a jury verdict holding it liable under § 1 of the Federal Employers' Liability Act¹ (the Act) for injuries incurred by one of its brakemen, the appellee (Nivens) in a train derailment. The accident occurred when the appellant's train ran aground in a drainage culvert which had washed out in a rainstorm.

Nivens' suit sought alternative bases for finding the railroad liable (1) that the railroad was negligent in permitting its employees to work in an unsafe place, i.e., upon a defectively designed roadbed, and (2) that the railroad was negligent in permitting its train to run in light of dangerous weather conditions. The railroad defended on the grounds that (1) it did not own the track, the track being under lease from Southern Pacific, and that it was not liable for a design, even if found to be defective, prior to the lease; and that (2) the torrential rainstorm was an unforeseeable act of God.

A general verdict was returned finding the railroad negligent and awarding Nivens damages in the amount of $109,040.80.

I

The railroad first contends that the trial judge erred in charging the jury that it was responsible under the Act for the conduct of Southern Pacific in the "maintenance or design" of the roadbed, if that conduct were found negligent. The court charged that the railroad would be responsible because the track was being used by the appellant "for its benefit and in furtherance of its operational activities" (also no doubt reflecting the stipulation that the appellant railroad was 96% owned by Southern Pacific²). The railroad maintains that if the design of the roadbed was negligent, the negligence was complete seven and one-half years before it leased the roadbed. It could not have had an opportunity to exercise due care in regard to the track at the time the design was formulated, thus it could not have known that the faulty design created an unsafe place to work.

The railroad characterizes the nature of its responsibility, and thus the nature of this suit, erroneously.

The standards of liability for negligence under § 1 of the Act are significantly broader than in ordinary common-law negligence actions. The Supreme Court has succinctly stated the now settled principles that in these cases,

"the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * *. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes * * *. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit." Rogers v. Missouri Pac. Ry., 352 U.S. 500, 506-508, 77 S.Ct. 443, 449, 1 L. Ed.2d 493 (1957).

Since the Act explicitly makes an employer liable if an injury results only in part from his negligence, the common-law proximate cause standard is modified, and the employee has a less demanding burden of proving causal relationship. Hausrath v. New York Cent. R. R., 401 F.2d 634 (6th Cir. 1968); cf. Lindauer v. New York Cent. R. R., 408 F.2d 638 (2nd Cir. 1969). Moreover, the defense of assumption of risk is eliminated under § 4 of the Act, 45 U.S. C. sec. 54, and the employee's contributory negligence does not bar recovery if the employer's negligence contributed in any way to the employee's injury, § 3 of the Act, 45 U.S.C. § 53. However, the plaintiff still has the burden of proving a hazardous condition, Inman v. Baltimore & O. R. R., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959), and that the employer, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury; foreseeability is "an essential ingredient" of negligence under the Act. Gallick v. Baltimore & O. R. R., 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963). But actual notice of an unsafe condition is unnecessary. Constructive notice may suffice. See Security Ins. Co. v. Johnson, 276 F.2d 182 (10th Cir. 1960), and cases cited at 187. In short, the principles that the employer is not an insurer of its employees' safety, and that negligence is not presumed merely by proving an injury, are still viable. Employer negligence is still mandatory for recovery under the Act.³

The instant case concerns what is probably the most common conduct sought to be proved negligent in cases brought under the Act: the alleged failure of the employer to use reasonable care in furnishing his employees with a safe place to work. Although the railroad construes this case as involving different principles, it does not dispute the settled premise that under the Act, an employer has

"the nondelegable duty to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control." Shenker v. Baltimore & O. R. R., 374 U.S. 1, 7, 83 S.Ct. 1667, 1672, 10 L.Ed.2d 709 (1963).

This duty includes a duty to inspect the third party's property for hazards and to take precautions to protect the employee from possible defects. Although an employee may be on another's property for only a short time, and although the employer may have no supervision over the property, there is no de minimus rule. The "brevity of the sojourn" is irrelevant with respect to the duty to provide a safe place to work, even though the opportunity to discover defects is obviously seriously lessened. The employer may protect itself by simply refusing to permit its employees from going on the property. Id. at 10, 83 S.Ct. 1667.

One rationale for the stringency of this rule is that if the employer were not held liable for injuries occurring on property not under his direct control or responsibility,

"the railroads, by the simple expedient of doing each other\'s work, could tie their employees up in legal technicalities over the proper railroad to sue for injuries and perhaps remove from coverage of the Act a significant area of railroad activity." Id. at 11, 83 S. Ct. at 1673.⁴

The significance of the foregoing to this case is that even if Southern Pacific were to be considered an aloof third party, its negligence in designing the track roadbed prior to leasing it to the railroad, or its failure under the lease agreement to properly maintain the roadbed, may not absolve the railroad for its separate and distinct statutory duty to provide its employees with a safe place to work. This duty involves a wholly independent inquiry; the distinction is well illustrated by the following case.

In Kennedy v. Pennsylvania R. R., 169 F.Supp. 406 (W.D.Pa.1959), a jury held the railroad liable for damages to the plaintiff for injuries he sustained in a derailment, based upon its finding that the railroad was negligent in failing to provide the plaintiff with a safe place in which to work. The derailment occurred at a track crossing owned by United States Steel, against whom the railroad sought indemnity. The jury found that USS was responsible for maintaining the crossing, and that the crossing had become unsafe through the acts of USS without fault on the part of the railroad. However, that issue was treated separate and apart from the railroad's failure in its nondelegable duty to provide the plaintiff with a safe place to work. The crossing having been found unsafe, the railroad was held liable to the plaintiff. On motion for new trial, that portion of the judgment was only lightly pursued. The third-party action was the primary source of contention, the court awarding indemnity to the railroad against USS on the basis of an unwritten agreement, and affirming the jury verdict in favor of the plaintiff.

On Appeal the Third Circuit reversed, holding the jury findings not fully determinative of the indemnity question. Although the plaintiff's judgment was not appealed by the railroad, the court drew the distinction between the main action being governed by the FELA, and the third-party action being governed by state law. The court observed that in the absence of a specific agreement requiring the steel company to maintain the tracks, recovery over by the railroad might be barred under state law. It is implicit, however, that regardless of whether there was an express agreement or not, the employee could recover from the railroad under the FELA; the railroad-USS squabble could in no way weaken that judgment. Kennedy v. Pennsylvania R. R., 282 F.2d 705 (3rd Cir. 1960).

The Kennedy holding clearly demonstrates, with regard to the instant case, that the...