Swartz v. NEW YORK CENTRAL RAILROAD COMPANY, 14105.

• Decision Date: 02 October 1963
• Docket Number: No. 14105.,14105.
• Citation: 323 F.2d 713
• Parties: Fred SWARTZ, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

323 F.2d 713 (1963)

Fred SWARTZ, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 14105.

United States Court of Appeals Seventh Circuit.

October 2, 1963.

David L. Matthews, South Bend, Ind., for appellant.

Louis C. Chapleau, South Bend, Ind., Richard O. Olson, Chicago, Ill., Arthur J. Perry, South Bend, Ind., for appellee.

Before HASTINGS, Chief Judge, and KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Plaintiff-appellant, Fred Swartz, brought this action against defendant-appellee, New York Central Railroad Company, for damages under the Federal Employers' Liability Act. His claim is based upon an injury to his knee he received on November 22, 1956, while employed by the railroad as a supervisor in the train yard at Elkhart, Indiana. He claims the railroad was negligent in failing to exercise reasonable care to provide him a safe place to work.

At the conclusion of plaintiff's evidence, the trial judge granted the railroad's motion for a directed verdict and entered judgment for defendant. The main question raised on this appeal is whether the trial judge erred in directing the verdict.

On the morning of November 22, 1956, plaintiff was told by his supervisor, Harlan Wingeart, the general car foreman, that a chain was needed to lift one of the cars from a train arriving at the yard. Wingeart requested plaintiff to bring the chain to Wingeart's car, saying that he would give Swartz a ride to the area where the chain was needed. Wingeart then left for his car, which was parked in a lot located in the railroad yard.

Plaintiff picked up the chain at the railroad blacksmith's shop and proceeded to the parking lot, where he approached the rear of Wingeart's car. He turned and walked backward to place the chain in the open trunk of the car. In doing so, he hit his knee against the bumper of the car and fell. He got up and entered the car. He told Wingeart that he had bumped the side of his leg or knee and it "stung" him.

The parking lot measured approximately sixty by eighty feet. The Wingeart car was parked about fifteen feet from the edge of the parking lot where there was a four-foot embankment to a railroad track. There was a slope of eight inches from one end of the lot to the other. Except for this gradual slope, the area where the car was standing was practically level.

The blacksmith's shop was about two hundred feet from where the car was parked. Plaintiff, after picking up the chain, walked along the railroad track to the edge of the parking lot, down the embankment, on to the parking lot to the car, at which point his injury occurred.

There is evidence that although the spaces between the ties on the track had at one time been filled with crushed stone, the surface was now hard and covered in places with cinders and oil.

There is no evidence that there was oil on the bottom of plaintiff's shoes as the result of his walking on the ties. He neither slipped nor fell on the four-foot embankment. In fact, there is no evidence that he fell at any time until after he had hit his knee on the car bumper. Although there is evidence that there were water or "chuck" holes in the parking lot, there is no evidence that there were any holes in the vicinity where plaintiff was hurt. Furthermore, there is no evidence that a two-inch accumulation of freshly fallen snow on the parking lot created a dangerous condition.

In the light of the evidence, we fail to see any basis on which a jury might have found negligence had the trial judge permitted the case to go...