Wilkerson v. Carthy

• Decision Date: 31 January 1949
• Docket Number: No. 53,53
• Parties: WILKERSON v. McCARTHY et al
• Court: U.S. Supreme Court

336 U.S. 53

69 S.Ct. 413

93 L.Ed. 497

WILKERSON

v McCARTHY et al.

No. 53.

Argued Dec. 6, 1948.

Decided Jan. 31, 1949.

Rehearing Denied March 28, 1949.

See 336 U.S. 940, 69 S.Ct. 744.

Parnell Black, of Salt Lake City, Utah, for petitioner.

Dennis McCarthy, of Salt Lake City, Utah, for respondents.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, a railroad switchman, was injured while performing duties as an employee of respondents in their railroad coach yard at Denver, Colorado. He brought this action for damages under the Federal Employers' Liability Act. ¹

The complaint alleged that in the performance of his duties in the railroad yard it became necessary for him to walk over a wheel-pit on a narrow boardway, and that due to negligence of respondents, petitioner fell into the pit and suffered grievous personal injuries. The complaint further alleged that respondents had failed to furnish him a safe place to work in several detailed particulars, namely, that the pit boardway (1) was not firmly set, (2) was not securely attached, and (3) although only about 20 inches wide, the boardway had been permitted to become greasy, oily, and slippery, thereby causing petitioner to lose his balance, slip, and fall into the pit.

The respondents in their answer to this complaint admitted the existence of the pit and petitioner's injuries as a result of falling into it. They denied, however, that the injury resulted from the railroad's negligence, charging that plaintiff's own negligence was the sole proximate cause of his injuries. On motion of the railroad the trial judge directed the jury to return a verdict in its favor. The Supreme Court of Utah affirmed, one judge dissenting. Utah, 187 P.2d 188.

The opinion of the Utah Supreme Court strongly indicated, as the dissenting judge pointed out, that its finding of an absence of negligence on the part of the railroad rested on that court's independent resolution of conflicting testimony. This Court has previously held in many cases that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on those issues. See, e.g., Lavender v. Kurn, 327 U.S. 645, 652, 653, 66 S.Ct. 740, 743, 744, 90 L.Ed. 916; Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 1065, 87 L.Ed. 1444; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 451, 452, 87 L.Ed. 610, 143 A.L.R. 967; and see Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239. It was because of the importance of preserving for litigants in FELA cases their right to a jury trial that we granted certiorari in this case.

The evidence showed the following facts without dispute:

Petitioner fell into the pit July 26, 1945. The pit, constructed in 1942, ran approximately forth feet east and west underneath three or more parallel tracks which crossed the pit from north to south. The pit was 11 feet deep and 4 feet 2 1/2 inches wide, with cement walls and floor. Car wheels in need of repair were brought to the pit, lowered into it, there repaired, and then lifted from the pit for return to use. When not in use the pit was kept solidly covered with heavy boards. These boards were used as a walkway by all employees. When the pit was in use the cover boards were removed except one 75 pound 'permanent board' 22 inches wide and 4 feet 2 1/2 inches long. While the solid covering was off, this 'permanent board,' built to fit snugly and firmly, was unquestionably used as a walkway by all employees up to about Mav 1, 1945.

On this latter date, the railroad put up 'safety chains' fastened to guard posts, inclosing 16 1/2 feet of the pit, on its north, south and west sides. The posts, 42 inches high, fitted into tubes imbedded in the ground, the tubes being larger than the posts—enough larger to allow the posts to work freely. The chains, attached two inches from the top of the posts, ere to be kept up while the pit was in use and taken down when the pit was not in use. They were up when plaintiff slipped from the 'permanent board' into the pit. At that time a tourist car was standing over the pit on track '23 1/2.' This track '23 1/2' was east of the two east chain posts, its west rail being about 36 inches, and the tourist car overhand about 7 inches from the two east chain supporting posts.² The floor of the 'overhang' was about 51 inches above the ground, or 9 inches above the top of the posts, thus allowing an unobstructed clearance of 51 inches under the overhand. The 'permanent board' was inside the chain enclosure, the board's east side being about 9 1/2 inches from the two eastern chain posts. Despite the proximity of the tourist car to the posts there was sufficient space east of each chain post so that pit workers had access to and used the board as a walkway. One of the defendant's witnesses, a very large man weighing 250 pounds, passed through it, though according to his testimony, with 'very bad discomfort.' Petitioner was a much smaller man, weighing 145 pounds, and it was by passing between one of these posts and the tourist car that petitioner reached the 'permanent board' which bridged the pit. Oil from wheels would sometimes accumulate at the bottom of the pit, and as stated by the Utah Supreme Court the 'permanent board' was 'almost certain to become greasy or oily' from use by the pit-men.

Neither before nor after the chains were put up, had the railroad ever forbidden pit workers or any other workers to walk across the pit on the 'permanent board.' Neither written rules nor spoken instructions had forbidden any employees to use the board. And witnesses for both sides testified that pit workers were supposed to, and did, continue to use the board as a walkway after the chains and posts were installed. The Utah Supreme Court nevertheless held that erection of the chain and post enclosure was itself the equivalent of company orders that no employees other than pit workers should walk across the permanent board when the chains were up. And the Utah Supreme Court also concluded that there was insufficient evidence to authorize a jury finding that employees generally, as well as pit workers, had continued their long standing and open practice of crossing the pit on the permanent board between the time the chains were put up and the time petitioner was injured.

It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given. Viewing the evidence here in that way it was sufficient to show the following:

Switchmen and other employees, just as pit workers, continued to use the permanent board to walk across the pit after the chains were put up as they had used it before. Petitioner³ and another wit- ness⁴ employed on work around the pit, testified positively that such practice continued. It is true that witnesses for the respondents testified that after the chains were put up only the car men, in removing and applying wheels, used the board 'to walk from one side of the pit to another * * *.' Thus the conflict as to continued use of the board as a walkway after erection of the chains was whether the pit workers alone continued to use it as a walkway, or whether employees generally so used it. While this left only a very narrow conflict in the evidence, it was for the jury, not the court, to resolve the conflict.

It was only as a result of its inappropriate resolution of this conflicting evidence that the State Supreme Court affirmed the action of the trial court in directing the verdict. Following its determination of fact the Utah Supreme Court acted on the assumption that the respondents 'had no knowledge, actual or constructive, that switchmen were using the plank to carry out their tasks,' (187 P.2d 196), and the railroad had 'no reason to suspect' that empl yees generally would so use the walkway. From this, the Court went on to say that respondents 'were only required to keep the board safe for the purposes of the pit crewmen * * * and not for all the employees in the yard.' But the court emphasized that under different facts maintenance of 'a 22-inch board for a walkway, which is almost certain to become greasy or oily, constitutes negligence.' And under the evidence in this case as to the board, grease and oil, the court added: 'It must be conceded that if defendants knew or were charged with knowledge that switchmen and other workmen generally in the yard were habitually using the plank as a walkway in the manner claimed by plaintiff, then the safety enclosure might be entirely inadequate, and a jury question would have been presented on the condition of the board and the adequacy of the enclosure.'

We agree with this last quoted statement of the Utah court, and since there was evidence to support a jury finding that employees generally had habitually used the board as a walkway, it was error for the trial judge to direct a verdict in favor of respondent.

There was, as the state court pointed out, evidence to show that petitioner could have taken a slightly longer route and walked around the pit, thus avoiding the use of the board. This fact, however, under the terms of the Federal Employers' Liability Act, would not completely immunize the respondents from liability if the injury was 'in part' the result of respondents' negligence. For while petitioner's failure to use a safer method of crossing might be found by the jury to be contributory negligence, the Act provides that 'contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee * * *.'

Much of respondents' argument here is devoted to the proposition that the Federal Act does...