Tiller v. Atlantic Coast Line Co, No. 296

• Court: United States Supreme Court
• Writing for the Court: BLACK
• Citation: 318 U.S. 54,87 L.Ed. 610,143 A.L.R. 967,63 S.Ct. 444
• Parties: TILLER v. ATLANTIC COAST LINE R. CO
• Docket Number: No. 296
• Decision Date: 01 February 1943

318 U.S. 54 63 S.Ct. 444 87 L.Ed. 610 TILLER

v.

ATLANTIC COAST LINE R. CO.

No. 296. Argued Jan. 4, 1943. Decided Feb. 1, 1943.

Page 55

Mr. J. Vaughan Gary, of Richmond, Va., for petitioner.

Messrs. Collins Denny, Jr., of Richmond, Va., and Thomas W. Davis, of Wilmington, N.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner's husband and intestate, John Lewis Tiller, was a policeman for the respondent railroad. Among his duties was that of inspecting the seals on cars in railroad yards to make sure that no one had tampered with them. He had held this position for some years, was familiar with the yard, and was aware, in the words of the court below, that respondent's employees 'are instructed tht they must watch out for the movement of the trains as no employee watches out for them and no lights are used at night on the head end of back-up movements except when an employee is placed at the back end with a lantern to protect a road crossing.' The Circuit Court of Appeals found that there was evidence sufficient to sustain the following account of the tragedy:

On the night of March 20, 1940, Tiller was standing between two tracks in the respondent's switch yards, tracks which allowed him three feet, seven and one-half inches of standing space when trains were moving on both sides.

Page 56

The night was dark¹ and the yard was unlighted. Tiller, using a flashlight for the purpose, was inspecting the seals of the train moving slowly on one track when suddenly he was hit and killed by the rear car of a train backing in the opposite direction on the other track. The rear of the train which killed Tiller was unlighted although a brakeman with a lantern was riding on the back step on the side away from Tiller. The bell was ringing on the engine but both trains were moving and the Circuit Court found (128 F.2d 420, 422) that it was 'probable that Tiller did not hear cars approaching' from behind him. No special signal of warning was given.

Petitioner brought this suit to recover damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51, et seq. The complaint alleged negligent operation of the car which struck defendant and failure to provide a reasonably safe place to work. Respondent denied negligence, pleaded contributory negligence on the part of the defendant, and set up as a separate defense that the deceased had assumed all the risks 'normally and necessarily incident to his employment.' After the plaintiff's evidence had been heard the defendant moved for a directed verdict on the grounds (a) that the evidence disclosed no actionable negligence and (b) that the cause of the death was speculative and conjectural. The motion was granted, judgment was accordingly entered for the defendant and the Circuit Court of Appeals, interpreting the decision of the district court as resting on a conclusion that the evidence showed no negligence, affirmed. 4 Cir., 128 F.2d 420. This result was based on a holding that the deceased had assumed the risk of his position and that therefore there was no duty owing to him by respondent. We granted certiorari 317 U.S. 610, 63 S.Ct. 58, 87 L.Ed. —-, because of the important question in-

Page 57

volved in the Circuit Court of Appeals' interpretation of the scope and effect of the 1939 amendment to the Federal Employers' Liability Act, 53 Stat. 1404, 45 U.S.C. § 54, 45 U.S.C.A. § 54. The amendment provides that an 'employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'

The Circuit Court distinguished between assumption of risk as a defense by employers against the consequence of their own negligence, and assumption of risk as negating any conclusion that negligence existed at all. The court reasoned that if, for example, the respondent had negligently failed to provide a workman with a sound tool, and he was thereby injured, it could not under the amendment claim that he had assumed the risk of using the defective implement; but that if a workman were injured in the ordinary course of his work, as in such a switching operation as this, the assumption of risk might still be relied upon to prove that the respondent had no duty to protect him from accustomed danger. The court rejected petitioner's argument that since the doctrine of assumption of risk had been abolished 'the carrier can no longer interpose it as a shield against the consequences of its neglect and hence is liable for injuries to its employees in its railroad yards or elsewhere, unless it takes precautions for their safety commensurate with the danger that they are likely to encounter.' In rejecting this argument the court below put the core of its decision in these words: 'The conclusion is inescapable that Congress did not intend to enlarge the obligation of carriers to look out for the safety of their men when exposed to the ordinary risks of the business, and that in circumstances other than those provided for in the amended section of the statute, the doctrine of the assumption of the risk must be given its accustomed weight.'

Page 58

We find it unnecessary to consider whether there is any merit in such a conceptual distinction between aspects of assumption of risk which seem functionally so identical, and hence we need not pause over the cases cited by the court below, all decided before the 1939 amendment, which treat assumption of risk sometimes as a defense to negligence, sometimes as the equivalent to non-negligence.² We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to 'non-negligence'. As this Court said in facing the hazy margin between negligence and assumption of risk as involved in the Safety Appliance Act of 1893, 45 U.S.C.A. § 1 et seq.' 'Unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name;'³ and no such result can be permitted here.

Perhaps the nature of the present problem can best be seen against the background of one hundred years of masterservant tort doctrine. Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the begin-

Page 59

ning of this period to insulate the employer as much as possible from bearing the 'human overhead' which is an inevitable part of the cost—to someone—of the doing of industrialized business.⁴ The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.⁵ The assumption of risk doctrine for example was attributed by this Court to 'a rule of public policy, inasmuch as an opposite doctrine would not only subject employers to considerable and often ruinous responsibilities, thereby embarrassing all branches of business,' but would also encourage carelessness on the part of the employee.⁶ In the

Page 60

pursuit of its general objective the common law took many forms and developed many doctrines. One of the first was the fellow servant-assumption of risk rule which originated in Priestly v. Fowler.⁷ In Priestly v. Fowler, the Court said, 'The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.'

As English courts lived with the assumption of risk doctrine they discovered that the theory they had created had become morally unacceptable but of such legal force that it could not be repudiated.⁸ The English sought to eliminate the fellow servant rule, which placed the burden of an employee's negligence as it affected another employee on the injured person rather than on the business enterprise, by the Employers' Liability Act of 1880⁹ and found that the assumption of risk doctrine still left the employee in a hopelessly unprotected position. In the leading case

Page 61

of Thomas v. Quartermaine, 1887, 18 Q.B.D. 685, the court held that an employee standing on a three foot runway between two unfenced vats who was attempting to dislodge a piece of wood from one of the vats and who by accident fell into the other and was scalded was barred from recovery. Since he had long known of the possible dangers of the narrow passage he was held to have assumed the risk of his position. In 1897 the English finally abandoned the common law remedy altogether as a protection for injured employees and adopted a workmen's compensation law. 60 & Vict. c. 37.

This Court accepted the assumption of risk doctrine as applied to railroad employees, at least in part, in 1879.¹⁰ That decision placed the employee's assumption of risk upon the theory that an agreement to assume the risk was implied from the terms of the employment contract.

Prior to the passage of the Federal Employers' Liability Act of 1906, 34 Stat. 232, the assumption of risk doctrine, except for a considerable vagueness as to its relation with contributory negligence, was fairly well known.¹¹ It had already been applied generally at the time of the adoption of the Act because of acceptance of the theory that the employee's compensation was based upon the added risk to his position and that he could quit when he pleased. Tuttle v. Milwaukee Railway, supra; and compare for a restatement of this view after the passage of the Employers' Liability Act, Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 504, 34 S.Ct. 635, 640, 58...