Wolfe v. Henwood

• Decision Date: 07 July 1947
• Docket Number: No. 13497.,13497.
• Citation: 162 F.2d 998
• Parties: WOLFE v. HENWOOD.
• Court: U.S. Court of Appeals — Eighth Circuit

162 F.2d 998 (1947)

WOLFE v. HENWOOD.

No. 13497.

Circuit Court of Appeals, Eighth Circuit.

July 7, 1947.

J. M. Willemin, of Jonesboro, Ark. (Arthur L. Adams and Arthur L. Adams, Jr., both of Jonesboro, Ark., on the brief), for appellant.

Joe C. Barrett, of Jonesboro, Ark. (Berl S. Smith and Archer Wheatley, both of Jonesboro, Ark., on the brief), for appellees.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

Alice Wolfe, administratrix, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, to recover for the death of her intestate, Owen Wolfe, which resulted from burns sustained by Wolfe while in the employ of defendant as a section hand. At the close of the evidence the defendant filed a motion for directed verdict. The trial court reserved ruling on the motion and submitted the case to the jury which returned a verdict for plaintiff for $5089.00. Thereafter defendant filed a motion for judgment notwithstanding verdict. The court granted the motion and entered the judgment for defendant from which judgment plaintiff appeals.

The trial court held that there was no proof of negligence of defendant which reasonably could be found to be the proximate cause of the accident in which Wolfe sustained fatal injuries. In determining whether the trial court erred in this regard and in granting defendant's motion for judgment notwithstanding verdict, we view the evidence in the light most favorable to plaintiff.

Owen Wolfe had been employed as a section hand by the Cotton Belt Railway for 27 years. Shortly after he was first employed he had sustained an injury which resulted in loss of vision of one eye, and on returning to his employment he was assigned to rather light work in the railroad yards in Jonesboro, Arkansas. His usual work consisted of filling and maintaining switch marker lamps, oiling and repairing manually operated switches and keeping them in operating order, and some janitor work. On occasions he would perform other usual and ordinary tasks of a section laborer.

On the day of the accident, April 18, 1945, Wolfe and three other laborers were instructed by the section foreman to assist two employees of the Water Service Department, in bailing out an accumulation of fuel oil and water from concrete catch basins located in defendant's yards and used to catch leakage from a fuel line running from storage tanks to fuel spouts used in servicing oil burning locomotives. The basins were about four feet square and three to four feet deep. In performing this work as instructed, the men got a certain amount of oil on their clothing. Wolfe's gloves and his clothing from his waist down became more or less saturated with the fuel oil.

On completing the work the men were directed by a water service man to return to their normal work and they returned to the toolhouse. No cleansing facilities were available in the toolhouse though there were such facilities nearby in the depot and in the roundhouse. The men procured waste material and gasoline from the toolhouse and proceeded to use gasoline soaked waste to remove the fuel oil from their clothes. After cleaning himself with the waste Wolfe voluntarily and without being ordered to do so, but with the idea of protecting the toolhouse from possible fire, sought to dispose of the waste by burning it. He placed it on the ground near the toolhouse, removed the glove from his right hand, took a small box of matches from his pocket, held it in his left hand, struck a match on the box and threw it out on the waste. As he did this the flame set the glove on his left hand on fire and he slapped the side of his leg to put out the fire. This set fire to his pant legs, the fire spread rapidly and notwithstanding efforts of the other employees to remove the clothing and extinguish the flames, Wolfe sustained severe burns which caused his death on July 11, 1945. There was evidence that gasoline mixed with fuel oil when ignited produced a temperature greater than that produced by gasoline alone, and that the mixture required more time for burning than gasoline alone.

Plaintiff's charge of negligence on the defendant's part is predicated on defendant's failure to furnish a pump to use in cleaning the catch basins rather than to require the men to dip the oil manually, failure to furnish protective clothing, particularly rubber boots to protect Wolfe from the oil, and failure to provide adequate facilities for cleansing after dipping the oil and for disposing of the oil-soaked waste.

The defendant had the duty to use reasonable care to furnish Wolfe a safe place in which to perform his work. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Thomson v. Boles, 8 Cir., 123 F.2d 487. But defendant's obligation was not such as to impose liability for injury regardless of due care and regardless of whether the injury was one reasonably to be anticipated or foreseen as a natural consequence of defendant's act. In order to recover under the Federal Employers' Liability Act, plaintiff had the burden of proving that defendant was negligent, and that such negligence in whole or in part caused Wolfe's injuries. 45 U.S.C.A. § 51; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598; Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Chicago, St. P. M. & O. R. Co., v. Arnold, 8 Cir., 160 F.2d 1002; Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820. And as stated by the Supreme Court in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 143 A.L.R. 967:

"* * * the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done. A fair generalization of the rule is given in the Senate Committee report on the 1939 amendment: `In justice, the master ought to be held liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the...