August John Hausrath v. The New York Central Railroad Company
401 F.2d 634
6th Cir.
1968
Check Treatment

*1 will, paying effect, the examination. he failed when be Hutchens life- tem discretionary Deferring pension. required the Board’s to to make time He is authority gauge every to the situation to reasonable effort find substan- illegal tially equivalent for employment have obtained but would and would overriding considering any period backpay its not be conduct entitled rights self-organ- duty preserve neglected of time in which he to do so. employees, Aircraft, Inc., Mooney we believe ization all 5th NLRB v. See employed requirement 1966, 813; 809, that Hutchens be Cir. NLRB 366 F.2d freight agent Co., ticket Bottling in Clearwater as 5th v. Miami Coca-Cola 1966, 569, Also, not was unreasonable.1 Cir. 360 F.2d 575. interpreted order not Board’s should freight employment If as require Company place Hutch- agent if ticket and Hutch- is unavailable freight agent ens if he as a ticket employment any ens does not want perform unable to in either those paid Company, with the then he must be capacities interpreted not should employment until he suitable obtains require compensa- the continuance of Again, elsewhere. we believe physically if incapable per- tion he is reasonably of the order calculated forming substantially equivalent employ- to restore that would have situation g„ Monkey Grip ment. See e. Better illegal obtained but conduct. If Co., 1170, enforced, 115 N.L.R.B. 5th physical Hutchens had failed exam his Cir. F.2d 836. November, 1966, ination in he would have Enforced. job been able to seek another Company opportunity at that time. His time, is,

to find one at that as a result of illegal conduct, gone forever cannot be known whether Bearing

found one. this in mind and again deferring discretion, to the Board’s surely includes discretion to make assumptions certain in favor of the vic August HAUSRATH, John Plaintiff- illegal tim of discrimination in kind Appellant, situation, we Board believe the could reasonably assume that Hutchens would The NEW YORK CENTRAL RAILROAD placed have been somewhere Com COMPANY, Defendant-Appellee. pany’s system November, No. 18156. assumption reasonably require could United job Appeals if States there Court no for him at such Sixth Circuit. compliance future time as with the order Sept. 10, undertaken, paid 1968. then he must be until employment he finds suitable elsewhere. summary, we believe reasonably designed

entire order was

restore the situation that would have illegal obtained but for the conduct and punitive.

therefore was not are not apprehensive Company as the employee discharged 1. An who been illegally discharged employees to reinstate peculiar violation of the Act assumes a positions when their former have been very status. The Board has broad discre abolished. It must offer them substan vindicating through tion in tially equivalent the Act him. employment. NLRB v. Corporation NLRB, Waterman S.S. Co., Missouri Transit 8th Cir. Thus, 5th Cir. 261; 119 F.2d 760. an F.2d NLRB v. Cowell Portland offending company escape duty cannot Cement 9th F.2d 237. *2 Gaines, Cleveland, Ohio,

Samuel T. appellant; Sayre, Harold H. Metzen- baum, Gaines, Krupansky, Finley Stern, Cleveland,Ohio, on brief. Cleveland, Ohio, Dolan, negligence, cars, F. due to John in its en- Cleveland, gines, Skulina, appliances, appellee; machinery, track, Thomas R. roadbed, works, boats, Ohio, wharves, on brief. or other equipment.” PHILLIPS, Before EDWARDS Judge’s charge The District to the Judges. McCREE, Circuit jury appropriately employed the critical *3 EDWARDS, Judge. Circuit portion quoted of the statute above: Appellant appeals from an adverse brought action has “This been un- against jury verdict in suit his his em- States, der the law of the United ployer, The New Central Railroad Employers’ known the Federal Lia- Company, Employers’ under the Federal bility Act. Under this or law act is (FELA).1 Liability Appellant’s Act provided, substance, every in that claim was that suffered a heart at- by railroad, common carrier while en- 7, 1963, tack on November while work- gaging any in commerce between of ing compressor on the air inside a diesel states, the several shall in be liable compartment locomotive because of the damages any person suffering inju- negligence appellee failing pro- of in ry employed by while he is such car- reasonably place a vide safe to work. injury rier in such commerce if such negligence alleged The was that the die- part in resulted whole or in from engine sel had not been shut down and negligence officers, any the of of the appellant allowed to cool before was as- agents, employees or of such carrier.” signed to work on it. Judge interpreted The District then Appellant’s principal witness testified the statute as follows: engine running that the must have been “This means that the Plaintiff is ten to twelve hours and that the in heat not entitled to from De- recover the engine compartment degrees the was 130 merely fendant because he suffered an Appellee’s or more. evidence was de- injury or heart attack. signed impeach witness and tend- engine question ed to show that the in “In order for the Plaintiff to re- running only had been for a short time cover from the Defendant railroad question on the date in the company that necessary here is under temperature engine compartment in the the terms of this act the Plain- could not have been that hot. prove by preponderance tiff the of the preponder- in evidence the Judge, The District after hear greater weight ance means the of the ing disputed testimony, this and evidence, the Defendant railroad properly decided the evidence company, acting through agents presented questions jury. for the employees, negligent, submitting jury, the case to the howev negligence that such of the Defendant er, erroneously he stated the law in rela company railroad was the direct and important aspect tion to an of the Fed proximate cause of the sickness Employers’ Liability eral re Act. We by claimed to have been sustained the for verse new trial. proximate Plaintiff. And provides part The FELA in that: “Ev- cause, means closest the direct * * * ery common carrier shall be cause, the cause but which this damages any person in liable suffer- happened would never in the ing injury employed by while he is such place.” first * * * * * injury carrier for such resulting Subsequently or from he em- negligence any officers, ployed phrase of the “the cause” agents, employees carrier, of such or “the direct cause” or real cause” “the by any insufficiency, reason of defect or 15 times in context. similar (1964). 1. 45 U.S.C. 51-60 §§ 2. 45 U.S.C. 51§

637 damages ordinary negligence injury or death Even an that, sought. action, are set are It does not matter standards where the evidence, may jury also law, an instruction from the the common regarded reason, grounds probabili- generally as reversible with be course, ty, may, more result other caus- attribute the There error. negli es, including employee’s If contribu- cause. than one proceed tory negligence. appraisal gence Judicial in such of a defendant proofs proximate cause, ing suffi determine whether is a recovery (assuming, jury presented narrowly ground question cient course, single presence inquiry whether, of all other essen limited to factors). Barringer Arnold, reason, may 358 the conclusion tial (1960); negligence employer Re drawn of the Mich. N.W.2d (1966); played injury (Second), any part at Torts all § statement sights Prosser, (3d 1964); Judges ed. are to fix their Torts death. W. § *4 and, Jr., James, primarily appraisal Harper The make F. Law to that F. met, (1956). if is to find 20.2 that test are bound Torts § jury that for the made out case is a currently proceeding under The the the whether or not evidence allows brought review, however, under fed is a jury probabilities. choice other a Congress wherein deliberate eral statute ly expressly imposes liability The statute negligence adopted a standard differ damages upon employer pay the The ent from that the common law. injury or death due ‘in in or whole “resulting phrase part” in or in negligence. part’ (Emphasis to its designed obviously to make even was added.) explicit negligence of an em more that the “The law was enacted because ployer did not the cause have to be sole Congress with the was dissatisfied injury or “the cause” of the duty of master to his common-law the justify recovery. in order supplants servant. The statute duty that Supreme The States Court has United duty the far more drastic given specific interpretations us of the damages paying injury or death at language quoted. FELA we have which in to the in whole or work due employer’s interpretations binding upon are These negligence.” Rogers upon us: district the courts 500, R., Pacific R. 352 U.S. Missouri 506-07, 1 L.Ed.2d 77 S.Ct. opinion im- “The Missouri court’s omitted.) (Footnotes 493 govern- plies the its view that this is ing by saying standard that the “resulting phrase in The FELA injury proofs must that ‘the show employer’s part” in from the whole or not have occurred but for the would course, requires jury negligence, of a negligence’ employer, of his and that relationship. finding of causal test of there is causal whether ‘[t]he that, negli- the Morrison v. York connection absent In Central New gent Co., (6th injury 1966), the not oc- R. act R. 361 F.2d 319 language panel proxi- one of this court cited Mathes curred.’ That the jury makes instruction which defined mate causation which question Devitt by employing dependent upon purposes cause the for FELA whether language Rogers jury may interpretative the of the find the defendant’s that negligence sole, efficient, pro- case: was the ducing injury. cause of damage injury proximate- or “An ly by act, an act or failure caused “Under statute test of a prepon- appears, proofs from jury simply case is whenever whether case, in the justify of the evidence that derance with reason the conclusion played any employer negligence played any part, act or omission small, bringing part, slightest, producing no matter how even causing injury actually ployees or law, about than that of the common damage. So, find, you judicial charge or if should is reversible error for a in the employ emphasize from the evidence fail to “in both the negligence any of the con- part” language defendant whole or causal of the manner, tributed, any way language or to- interpretative statute and the any injury damage Supreme suffered Rogers ward of the Court plaintiff, may you find case. damage proximate- injury Since what we have said occasions ly by the caused defendant’s act trial, appellate reversal new is- Devitt, omission. Federal Mathes and briefly Appel- can sues dealt with. Jury Instructions, 84.- Practice § complains judge’s charge lant (1965).” Morrison York v. New appellant’s theory misstated of the case supra R. Co., Central R. at 320. pertinent and some of evidence. comparison of the Our and the Tyree R. New Central R. supports complaint record in some (6th Cir.), 382 F.2d 524 cert. de respects. But since the case will re- nied, 19 L. U.S. S.Ct. tried, spell we find no need to out errors (1967), panel Ed.2d another of this repeated. which doubtless will not be court criticized the sort of language occasions re our do not need to determine ei Indeed, versal of this case. two members judge’s ther in this case whether a fail expressed of the court the view that “it poll jury requested ure when *5 Employers’ would be better in Federal always do so is reversible error. See Liability Act cases if no mention of Kelly, (4th Turner 262 F.2d 207 made to whatever was right 1958). Polling is a established jury.” Tyree v. New Central rule in a criminal federal case. See Co., supra R. R. at 529. provi But Fed.R.Crim.P. 31. no such Tyree) however, In both Morrison and sion made a of the Federal spite the court concluded that of erro- is, of Civil Procedure. It Rules howev language charge, neous grant er, clearly practice better taken aas whole contained sufficient request and error to refuse it. Hum emphasis upon part” the “in or in Columbia, phries v. District of 174 U.S. principle of the statute so that reversal (1899) ; S.Ct. L.Ed. required. for new trial was not (2d Moore, j[ 5 J. Federal Practice 49.07 1968). ed. This, however, is not the situation in judge’s this case. As we read the Finally, judge in the event the trial on charge here, employ while he did the “in retrial sees fit to deal with foreseeabil- part” language whole or in of the stat- ity appro- in this FELA he cannot once, immediately interpreted ute this ignore priately guidelines laid down language requiring proof as the em- subject Gallick Baltimore ployer’s negligence was the 117-22, R. Ohio R. 372 U.S. appellant’s injury. cause of And as we S.Ct. 9 L.Ed.2d 618 noted, emphasis was continued Reversed and remanded for new trial. throughout charge. provide McCREE, Judge do not (concurring). seek to Circuit manda tory language judicial charges I concur in the decision to reverse and FELA eases. Different fact situations for a remand new trial because the Dis- require approaches. different And we Judge’s trict instruction on causation judges always trust trial will have some adopt language I was erroneous. differing styles. what But since Con Judge Tyree Senior McAllister gress deliberately established more stating the correct instruction in Feder- protective principle Employers’ Liability railroad em- al Act cases.