Sheaf v. Minneapolis, St. P. & SSMR Co.

• Decision Date: 18 June 1947
• Docket Number: No. 13488.,13488.
• Citation: 162 F.2d 110
• Parties: SHEAF v. MINNEAPOLIS, ST. P. & S. S. M. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

162 F.2d 110 (1947)

SHEAF v. MINNEAPOLIS, ST. P. & S. S. M. R. CO. et al.

No. 13488.

Circuit Court of Appeals, Eighth Circuit.

June 18, 1947.

P. W. Lanier, of Fargo, N. D. (P. W. Lanier, Jr., of Fargo, N. D., on the brief), for appellant.

Fordyce W. Crouch, of Minneapolis, Minn. (John F. Sullivan, of Mandan, N.D., and James L. Hetland, of Minneapolis, Minn., on the brief) for appellee Railroad Company.

L. W. Rulien, of Thief River Falls, Minn. (H. O. Chommie, of Thief River Falls, Minn., on the brief), for appellee C. Johnson.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant, Carl Sheaf, a railroad conductor, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, against the defendant railroad company and C. Johnson, a railroad engineer, for damages for personal injuries sustained by the plaintiff as a result of an alleged unprovoked attack made upon him by Johnson in the yards of the company at the town of Balta, North Dakota, on May 31, 1946. At the time of the injury complained of both Sheaf and Johnson were employed by the company in the operation of a train in interstate commerce.

The pertinent provision of the Federal Employers' Liability Act upon which the suit is based reads:

"Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier * * *."

The railroad company moved to dismiss the action on the ground that the complaint fails to state a claim against it upon which relief can be granted. Johnson moved for a dismissal upon the pleadings on the same ground. Sheaf then asked leave to amend his complaint by alleging diversity of citizenship of the parties.

The court sustained the motion of the railroad company and dismissed the action against the company. The motion of Johnson to dismiss was also granted with leave to the plaintiff to amend his complaint within twenty days. This appeal was taken without the filing of an amendment to the complaint.

The plaintiff contends that the court erred in dismissing the complaint as to both defendants in that

1. The complaint alleged a cause of action under the doctrine of respondeat superior;

2. The complaint alleged a cause of action upon the theory of negligence upon the part of the railroad company both in employing the engineer Johnson with knowledge of his vicious propensities and by ratification of his acts of violence; and

3. The complaint alleged a cause of action against both defendants because Johnson by his assault upon the plaintiff violated a rule of the company and his act was ratified by the failure of the company to discharge him.

We shall first consider the judgment dismissing the complaint against the defendant Johnson. Since the suit was brought specifically under the Federal Employers' Liability Act, clearly the court did not err in this particular. Diversity of citizenship was not alleged. Johnson was not alleged to be either an employer of the plaintiff or a common carrier. The Act creates no right of action by an employee of a common carrier against his fellow servant. The complaint asserted but one right of recovery for the injury and recovery can not be had under that alleged right because the Act is not applicable and the court was, therefore, without jurisdiction to grant the relief demanded against Johnson. Plaintiff might have amended his complaint, pleaded the necessary jurisdictional facts and sustained his action under the common or statute law of the state, but in the absence of such an amendment the court properly granted Johnson's motion to dismiss. Wabash Railroad Company v. Hayes 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226; Second Employers' Liability Cases, (Mondou v. New York, New Haven & Hartford R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A., N.S., 44.

We next consider the action of the court in dismissing the complaint against the defendant railroad company.

The question presented here is whether the facts alleged in the complaint and admitted by the railroad company's motion to dismiss are sufficient to establish liability of the company under the statute.

After specifying that the case is brought under the Federal Employers' Liability Act and stating that plaintiff had been employed by the company for many years as a conductor in the operation of trains in interstate commerce, the complaint alleged that about 8:30 A. M. on May 31, 1946, plaintiff was the conductor in charge of a train operating in interstate commerce by the defendant company on which the defendant Johnson was employed as engineer. The train had stopped at Balta, North Dakota, under orders to take on stock. As plaintiff Sheaf was passing by the engine on the left side of the train, Johnson came from his side of the train and asked what the delay was about. Sheaf replied that Johnson knew as much as he did. As Sheaf turned to go back toward the depot he heard Johnson say something about tying up at Orrin. He could not hear exactly what Johnson said because he was a little hard of hearing, so he said to Johnson, "Come down here and I can talk to you." To which Johnson replied: "You goddam right I'll come down." Johnson then appearing to be mad got down from the engine, ran and grabbed Sheaf and threw him to the ground causing serious personal injuries for which damages are sought in this suit. The assault was made, the complaint alleged, without provocation while Johnson was acting within the scope of his employment by the defendant company.

The assault upon Sheaf was made by Johnson in violation of Rule 702 of the defendant company's Code of Operating Rules which provides that "Employees are prohibited from entering into altercation with any person" and that "Employees who are * * * quarrelsome or otherwise vicious * * * shall not be retained in the service."

Johnson, it was alleged, had been a quarrelsome and vicious person for many years prior to the assault on plaintiff, all of which was known to the railroad company, or which by the exercise of ordinary care should have been known to it. That since the assault the company has ratified the acts of Johnson by retaining him in its service. His employment under the circumstances constituted negligence.

Upon motion by a defendant for the dismissal of a complaint for failure to state a claim upon which relief can be granted, it is the duty of the court to enter judgment forthwith when it appears that the moving party is entitled to a judgment as a matter of law. Rules 12 and 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c.

Here no genuine issue of negligence is stated in the complaint such as is necessary to preclude a summary judgment for the railroad company. Under the Employers' Liability Act "Liability arises from negligence not from injury * * *. And that negligence must be the cause of the injury." Ellis v. Union Pacific R. Co., 329 U. S. 649, 653, 67 S.Ct. 598; Brady v. Southern Ry. Co., 320 U.S. 476, 484, 64 S.Ct. 232, 236, 88 L.Ed. 239; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967. The burden is upon the plaintiff to allege and prove that the negligence of the employer was "in whole or in part" the cause of the injury complained of. Ellis v. Union Pacific R. Co., supra; New York Central Railroad Company v. Ambrose, 280 U.S. 486, 489, 50 S.Ct. 198, 74 L.Ed. 562.

Under this Act "the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done." Tiller v. Atlantic Coast Line R. Co., supra, at page 67, of 318 U.S., at page 451 of 63 S.Ct., 87 L.Ed. 610, 143 A.L.R. 967; Keith v. Wheeling & L. E. Ry. Co., 6 Cir., 160 F.2d 654, 657.

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