Southern Railway Co. v. Welch

• Decision Date: 11 July 1957
• Docket Number: No. 13020.,13020.
• Citation: 247 F.2d 340
• Parties: SOUTHERN RAILWAY CO. v. Hugh V. WELCH.
• Court: U.S. Court of Appeals — Sixth Circuit

247 F.2d 340 (1957)

SOUTHERN RAILWAY CO. v. Hugh V. WELCH.

No. 13020.

United States Court of Appeals Sixth Circuit.

July 11, 1957.

Clyde W. Key, Knoxville, Tenn., for appellant.

Francis W. Headman, Knoxville, Tenn., for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

PER CURIAM.

This appeal grows out of a judgment of the District Court in an action for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The case was tried without the intervention of a jury.¹

Plaintiff, a machine-grinder operator, was employed at defendant's rail reclamation yard in Knoxville, Tennessee. Plaintiff's work was to smooth off sharp burrs from the end of reclaimed rails by grinding them with an emery wheel. About 200 rails were ground in one day, each rail weighing approximately 1,600 pounds. Plaintiff was compelled to pull the rails partly crosswise of certain rollers supported by tables three feet high upon which the rails were carried to be cut and ground. As a result of an injury to his back during this pulling operation, duly reported, plaintiff ruptured a disc between the 4th and 5th vertebrae. Two physicians testified to the effect that the rupture was traumatic. One of them stated that during the course of this heavy work for four years plaintiff's disc had worn thin "just like a pair of shoes" and had finally ruptured this particular day. The second physician said that the "lifting injury" sustained on the day charged had produced a weakness which later caused the rupture of the disc. It was shown that plaintiff has sustained both partial and permanent disability.

Defendant urges first that no negligence on its part was shown. As to the principal negligence alleged, which was that defendant failed to furnish adequate assistance, defendant contends that plaintiff was performing "what was always a one-man job." However, it appears by substantial evidence that upon the day of the injury circumstances of particular difficulty existed. The grit, grime, tar and dirt on the rails were excessive and required additional force to pull the rails into proper position. Under such circumstances it had been defendant's previous practice to assign an extra man to assist the grinder. This is not denied. So far as this record shows the extra man was furnished without request. Upon this and the other issues of fact in the case the findings of the District Court are not clearly erroneous, and are binding here.

The employer is under the nondelegable obligation of providing sufficient help for the particular task. Chesapeake & Ohio Railway Company v. Winder, 4 Cir., 23 F.2d 794. No duty required of the employer for the safety and protection of his servants can be transferred so as to exonerate him from such liability. Northern Pacific Railroad Company v. Herbert, 116 U.S. 642, 647, 6 S.Ct. 590, 29 L.Ed. 755. In this case the Supreme Court cited with approval a decision of the Court of Appeals of New York, Flike v. Boston & Albany Railroad Company, 53 N.Y. 549, which held the railroad liable for an accident caused by an insufficient number of brakemen on the cars of the company (116 U.S. 649, 6 S.Ct. 593). Whether the employer has failed to perform his duty is a question of fact for the jury or, on trial without jury, for the court. Kansas City Stockyards Company of Maine v. Anderson, 8 Cir., 199 F.2d 91.

Defendant's second contention arises out of the fact found by the District Court, that plaintiff did not request additional help nor make use of the help available. It urges that these facts bar recovery and require reversal. These objections, however, are based essentially on the doctrines of assumption of risk and of contributory negligence. But, since the enactment of 1939, 45 U.S.C.A. Section 51 et seq., "every vestige of the doctrine of assumption of risk" has been eliminated from the Federal Employers' Liability Act. Tiller v. Atlantic Coast Line Railroad Company, 318 U.S. 54, 63 S.Ct. 444, 446, 87 L.Ed. 610. See also Thompson v. Camp, 6 Cir., 163 F.2d 396, 402, which held that neither assumption of risk nor contributory negligence is a bar under the present Act.

The decisions relied on by defendant do not lay down a hard and fast rule with reference to the necessity of protest or request for additional necessary assistance. Protest or request by the employee for additional help may, considered with other circumstances, constitute evidence of the employer's negligence. Stone v. New York, Chicago & St. Louis Railroad Company, 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441, and Blair v. Baltimore & Ohio Railroad Company,...