Wooden v. Missouri Pacific R. Co.

• Decision Date: 04 January 1989
• Docket Number: No. 87-3799,87-3799
• Citation: 862 F.2d 560
• Parties: 27 Fed. R. Evid. Serv. 299 Irvin J. WOODEN, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 560

862 F.2d 560

27 Fed. R. Evid. Serv. 299

Irvin J. WOODEN, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee.

No. 87-3799.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1989.

Rodney P. Vincent, Gary R. West, Gertler, Gertler & Vincent, New Orleans, La., for plaintiff-appellant.

William H. Howard, III, Alissa J. Allison, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, RUBIN, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Irvin Wooden sued the Missouri Pacific Railroad Company pursuant to the Federal Employers Liability Act, 45 U.S.C. Sec. 51 et seq. ("FELA"). Wooden alleged that he had contracted silicosis as a result of work he did for the Railroad, and that the Railroad had negligently failed to provide him with a respiratory mask. The trial judge directed a verdict for defendant, finding that Wooden had failed to present any evidence which would permit an inference that the Railroad was aware of the risk to Wooden. On appeal, we find that there was sufficient evidence to warrant submitting the case to the jury under the FELA's especially permissive standard. We therefore vacate and remand.

I

Between 1954 and 1961, Irvin Wooden worked for the Texas Pacific-Missouri Pacific Railroad. Wooden operated a tamping machine, a machine powered by compressed air and used to tamp gravel under the Railroad's ties and tracks. Wooden alleges that the machine generated a heavy cloud of silicon dust.

In 1985, Wooden was diagnosed as suffering from silicosis, a lung disease associated with significant exposure to silica dusts. In 1986, Wooden filed suit against the Railroad under the FELA. Section 1 of that statute provides

Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.

To prevail, Wooden thus had to show that he was injured, that the Railroad was negligent, and that the Railroad's negligence caused his injury. For the purposes of the FELA, negligence is defined by federal common law. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949). As the Urie Court explained, "negligence, within the meaning of the Federal Employers' Liability Act, attached if respondent 'knew, or by the exercise of due care should have known,' that prevalent standards of conduct were inadequate to protect petitioner and similarly situated employees." The crucial factual question was whether "under the particular conditions described in this case, the defendant furnished plaintiff a reasonably safe place in which to work and such protection in connection with his work against the inhalation of silica dust as would be expected of a person in the exercise of ordinary care under those conditions." 337 U.S. at 178 & n. 16, 69 S.Ct. at 1028 & n. 16, quoting Sadowski v. Long Island R. Co., 292 N.Y. 448, 55 N.E.2d 497 (1944).

At the close of Wooden's case, the trial judge directed a verdict for the Railroad. She reasoned that Wooden had failed to present any evidence which would permit the jury to infer that the Railroad knew or should have known that Wooden's job placed him at risk of contracting silicosis. On appeal, Wooden raises four issues. First, did Wooden present evidence sufficient to permit an inference that a reasonable railroad would have known that Wooden's job with the Railroad subjected him to a risk of severe respiratory ailment? Second, should the district judge have taken judicial notice that it was common knowledge in the late 1950's that working in a cloud of silicon dust without respiratory gear could cause severe lung injury? Third, should the district judge have allowed an expert witness to testify that the dangers of silicosis were well-known to industrial hygienists in the 1950's? Fourth, should the district judge have granted a directed verdict for Wooden in light of similar cases in which juries had found railroads obligated to protect workers from the hazard of silicosis?

II

The district judge ruled that the jury could not reasonably have inferred, on the basis of the evidence presented, that the Railroad knew, or should have known, that Wooden's job exposed him to a substantial risk of silicosis. In this Circuit, a directed verdict against the plaintiff in an FELA suit is appropriate "only when there is a complete absence of probative facts" supporting the plaintiff's position. Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 & nn. 5-6 (5th Cir.1980); Boeing Co. v. Shipman, 411 F.2d 365, 370 (5th Cir.1969) (en banc). This standard is highly favorable to the plaintiff, and recognizes that the FELA is protective of the plaintiff's right to a jury trial.

To apply the "complete absence of probative facts" standard, we must review the evidence in the record favorable to Wooden. Wooden himself testified that the tamping was done by eight-man teams, and that the tampers generated a heavy cloud of dust: "You barely could see what you was doing with the smoke--the dust be going up over your head from the tampers." Wooden also testified that the material in the railroad bed was gravel mixed with sand. He told the jury that he had been provided with a respirator at two other jobs, with the Avondale Shipyards and with Haase Construction Co., that had required him to work in a cloud of sandy dust.

Dr. Yehia Hammad, an industrial hygienist, testified that the Missouri-Pacific trackbed contained gravel that was one hundred percent silica. He also testified that respiratory protection would be essential for someone regularly working in a visible cloud of dust generated by the crushing of silicates. Hammad also stated that government-approved respirators were available in the 1940's and 1950's, and that the best of these respirators were 99.9 percent efficient. Hammad stated that the profession of industrial hygiene had existed throughout this century, and that industrial hygienists were available for hire by industries seeking to maintain a safe workplace.

Finally, Dr. Morton Brown, a physician treating Wooden, testified that in the middle nineteenth century, "we began to get a pretty good idea of the dangerous nature of the dust," and that in the early twentieth century it became obvious that "silicon dioxide, which is white sand, the kind of sand that you see at the beach ... is very very noxious to the lung."

From this evidence, the jury might have inferred that the Railroad knew, or should have known, of the risk to Wooden. From the information that other employers provided respirators to workers who might inhale dust from sand, and that the government had approved various respirators, the jury might infer that the Railroad should have known that workers exposed to sandy dusts need respiratory protection. From the fact that Wooden, together with other members of the tamping team, worked in a heavy, almost blinding cloud of dust generated by sand and gravel, the jury might have inferred that the Railroad should have known that Wooden worked in a cloud of silica dust: the Railroad might have seen the dust, and known what rocks were on its trackbeds. Together these two inferences would enable the jury to conclude that the Railroad knew or should have known that Wooden needed respiratory protection.

The links in this chain are weak. The jury might quite reasonably have refused to draw the conclusions Wooden asked of them. But we need not determine how the jury should have decided. The only question before us is whether there was a "complete absence of probative facts" supporting Wooden's argument. We find there were some, if very few, probative facts to support his allegations.

It may seem unfair to permit a jury to charge the Railroad with knowledge on so thin a basis. It must be remembered, however, that the Railroad, as well as...