Wilson v. Chicago, Milwaukee, St. Paul, and Pacific R. Co.

• Decision Date: 11 May 1988
• Docket Number: No. 86-2042,86-2042
• Citation: 841 F.2d 1347
• Parties: Daniel WILSON, Plaintiff-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL, AND PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1347

841 F.2d 1347

Daniel WILSON, Plaintiff-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL, AND PACIFIC RAILROAD COMPANY a corporation, Defendant-Appellee.

No. 86-2042.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1987.

Decided March 8, 1988.

Rehearing and Rehearing En Banc Denied May 11, 1988.

Paul Bator, Meyer, Brown & Platt, Chicago, Ill., for plaintiff-appellant.

Daniel J. O'Connor, Baker & McKenzie, Chicago, Ill., for defendant-appellee.

Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

Daniel Wilson, a railroad employee, sued his employer, the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Railroad) under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. (FELA). Wilson is paralyzed as the result of an accident which occurred during the workday when a fellow employee fell asleep while driving a car in which Wilson was a passenger. The district court granted the Railroad's motion for summary judgment on the ground that Wilson's injury did not occur while he was within the scope of his employment. But to grant the Railroad's motion, the district court had to resolve conflicting deposition testimony against Wilson. Therefore, summary judgment was improper, and we reverse and remand.

I. NATURE OF THE CASE

Wilson, a Wisconsin resident, was the assistant foreman of a Railroad labor group that collected reusable rail from the tracks as part of a rail replacement project. The group was working along a track in Iowa stretching 23 miles from Moravia southwest through Mystic to Seymour. A schematic is as follows:

k Moravia

k

k Mystic

k

k

k Seymour

Don Christian was the group's foreman. A week before the June 6, 1984 accident, Christian assigned Wilson to work with and supervise two others, Bernard (Bill) Barnes and Michael Craig, as an advance crew that drove along the track and marked rail for the remainder of the group, who rode in a work train with Christian, to pick up.

The Railroad did not provide transportation for the advance crew. Rather, the custom was for an advance crew member to use his own car to drive the crew to the work sites along the track. Pursuant to a collective bargaining agreement, the Railroad paid mileage to an employee to whom it did not furnish transportation and who used his own vehicle to drive between work points. This reimbursement also applied to transportation between the designated assembling point and the first work site.

Wilson testified in his deposition that, as an assistant foreman, he felt obligated to transport his crew in his van. Therefore, beginning with his assignment to the advance crew a week before the accident, Wilson drove the other two.

On Tuesday night, after driving along the tracks every day for a week, Wilson discovered problems with his van: "Those roads in Iowa had tore my front end up from all the ruts.... The A-frame had busted, the ball joint splattered." At that time, Wilson intended to work for one or two more days before leaving on a vacation. He therefore needed to repair his van.

On Wednesday morning, the entire group met before work for breakfast at a cafe in Moravia, the town located at the northernmost point of the twenty-three-mile stretch of track. The men discussed Wilson's van's poor condition. Wilson asked Christian if--before proceeding to his work site--he could drop off his van for repairs. Christian approved. The cafe's owner, overhearing the conversation, informed Wilson that a nearby garage could repair his van.

The group proceeded to a nearby work shack to receive their instructions for the day from Christian. Because of a shortage of clean 115-pound rail up the line, during that meeting Christian directed Wilson and his crew to go to Seymour, the southernmost town, to begin locating and marking that type of rail. This special assignment was in addition to their regular task of turning and marking all reusable rail. The crew was to begin in Seymour and work towards Mystic, where they were to work in the afternoon. Christian testified in his deposition that at the time he spoke to Wilson, "I didn't know exact footage [of clean 115-pound rail] what I needed." Christian did not explain in his deposition how or when he intended to inform Wilson of the amount.

According to Wilson's deposition, Christian told him that later in the day he would let him know how much rail was needed: "He said I'll let you know later on.... He didn't really know. He said he'd let me know later on." Christian denies telling Wilson to check back.

Wilson testified that the only ways to check back were to use a radio located at the station in Seymour or to find Christian, either in Moravia or else along the track. "I would check in Moravia first. I wouldn't go crossing to crossing, only if they weren't in the hole I'd have to go look for them down the track." The "hole" apparently refers to the "siding" where the work train would wait while other trains came down the track. One siding was located right next to the depot in Moravia. Not surprisingly, the work train often spent a good part of the day in a siding.

After the meeting at the work shack, Wilson left his van at the garage located near the cafe in Moravia. That day Barnes would use his vehicle to transport the advance crew. Christian had asked Barnes to drive that day and Barnes, who was driving his daughter's car, had agreed reluctantly: "I didn't like it.... [I]t was her car, and I didn't want anything to happen to it.... [I] didn't want to ride over the rough roads with it." Craig had already refused to drive his car.

From the garage, Barnes drove Wilson and Craig southwest to the work site in Seymour. Through the morning, the crew located and marked the clean 115-pound rail as Christian had requested, in addition to marking old rail. For lunch, Barnes drove the crew northeast to Mystic, which was about halfway between Seymour and Moravia. Mystic also was their designated afternoon starting point.

After lunch, Wilson wanted to call the garage in Moravia "just to see how much the bill was going to cost me." However, he could not obtain the garage's telephone number through directory assistance.

Instead of remaining in Mystic to work, the crew traveled twelve miles northeast to Moravia, the northernmost town. Wilson claims a dual purpose for this detour to Moravia. He testified in his deposition that he told his subordinates, Barnes and Craig, that one reason why he wanted to go to Moravia was to find Christian to seek additional information about the amount of clean rail his crew needed to mark: "I said I got to check on my van. We got to also talk to Don [Christian] about this footage ... talk to Donny about this hundred fifteen pound rail."

Craig testified in his deposition that before departing, the only reason Wilson gave for driving to Moravia was to check on the van. Barnes does not recall whether Wilson said anything about looking for Christian.

Wilson testified that they looked for Christian in Moravia but did not find him. Barnes and Craig also testified that upon arriving in Moravia they looked for the group's work train in the siding but did not spot it there or see it on the tracks. But to reach the garage, the crew had to cross the tracks anyway. As Craig testified,

Just when we come into town, as you cross the tracks you can see the siding. Dan [Wilson] looked down there and said the train wasn't in right now.

* * *

I didn't know ... until after he said the train wasn't in that he had intended to look for it.

After that, the crew proceeded to the garage to check on the repairs to Wilson's van. Barnes testified in his deposition that his understanding at the time was that if the van had been ready, the crew would have switched to Wilson's van. The van was not ready, but the mechanic promised it would be ready by day's end.

The three headed back toward Mystic, where, according to Wilson, they intended to look again for Christian before resuming work nearby. On the road from Moravia to Mystic, Barnes fell asleep at the wheel. The ensuing crash rendered Wilson a quadriplegic.

The next day, Christian filed injury reports for Wilson, Craig and Barnes with the Railroad. In each report, he stated that the injuries occurred "on company time, going to center mark and turn rail." Christian later retracted this statement and testified that when he filled out these reports he did not know about the trip to Moravia to check on the van. But Christian signed a statement three weeks after the accident in which he stated that before drafting the accident reports, "[b]oth Barnes and Craig told me that they had eaten lunch in Mystic and the injuries occurred after they checked on the van and were returning to Mystic...."

II. NATURE OF THE PROCEEDINGS

Wilson commenced this action on December 30, 1983 by filing a complaint under FELA for an unrelated accident. On July 16, 1984, the district court granted Wilson leave to file an amended complaint, with Count I referring to the earlier accident and Count II to the June 6, 1984 accident.

45 U.S.C. Sec. 51 provides that a railroad carrier engaging in interstate commerce is liable to "any person suffering injury while he is employed by such carrier in such commerce" for any injury "resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier...." This statutory language has uniformly been read as requiring a FELA claimant to prove that he was injured while in the scope of his employment. See, e.g., Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir.1985) (collecting cases); Fowler v. Seaboard Coastline R.R. Co., 638 F.2d 17, 19 (5th Cir.1981).

After extensive discovery, including depositions of Wilson, Christian, Barnes and Craig, the parties filed cross motions for summary judgment on Count II of Wilson's amended complaint. The Railroad contended that Wilson was...