BRADY, ADMINISTRATRIX, v. SOUTHERN RAILWAY CO.
No. 26
Supreme Court of the United States
Argued October 19, 1943.—Decided December 20, 1943.
320 U.S. 476
Mr. Sidney S. Alderman, with whom Messrs. Russell M. Robinson, S. R. Prince, H. G. Hedrick, and W. T. Joyner were on the brief, for respondent.
MR. JUSTICE REED delivered the opinion of the Court.
This case arose under the Federal Employers’ Liability Act.1 Certiorari to the Supreme Court of North Carolina was sought and granted to consider the retroactivity of the last amendment to the Act in conjunction with the contention that there was error in the ruling which held the case improperly submitted to the jury by the trial court. 319 U. S. 777. Our conclusion makes it unnecessary to consider the former problem.
The decedent, Earle A. Brady, was a brakeman. At the time of his death he was employed in that capacity in interstate commerce by the respondent, Southern Railway Company. The accident occurred during a switching movement in Virginia. The freight train upon which decedent was acting as brakeman came north over a main line and passed a switch which led into a storage track running south parallel to and on the east of the main line. There were four other members of the crew—the engineer, the fireman, the flagman and the conductor.
After the entire train passed the switch, it was stopped and backed into the storage track to permit another northbound train to go through on the main line and to pick up twelve cars at the south end of the storage track. After the other train passed, decedent‘s train, without picking up the storage track cars, pulled out on to the main line, backed southwardly beyond a vehicular grade cross-
As the engine and four cars backed slowly into the storage track, the decedent was riding the southeastern step of the rear car, a gondola. It was 6:30 A. M. on Christmas morning and so dark the work was carried on by lantern signals. The trucks hit the wrong end of a derailer, located three or four car lengths from the switch, which was closed so as to prevent cars on the storage track from drifting accidentally onto the main line.2 The contact derailed the cars and threw decedent to instant death under the wheels.
Damages were sought for the alleged negligence of the carrier in failing to furnish a reasonably safe place to work by reason of defects in the track and derailer and, we assume since it was submitted to the jury and passed upon by the Supreme Court of North Carolina, 222 N. C. at 370, 23 S. E. 2d 334, 337, by the act of some other employee in improperly closing the derailer after the beginning and
There is thus presented the problem of whether sufficient evidence of negligence is furnished by the record to justify the submission of the case to the jury. In Employers’ Liability cases, this question must be determined by this Court finally. Through the supremacy clause of the Constitution,
An examination of the proven facts to determine whether they are sufficient to permit a verdict by the jury for the decedent‘s estate based upon reason is of no doctrinal importance. Every case varies. However, the soundness of the judgment entered in the state Supreme Court depends upon an appraisal of the evidence and, as to this, there is a difference of opinion here. Our conclusion is that there is failure to show in the record any negligence of the carrier from not putting a light on the derailer or by the action of other employees than decedent in closing the derailer.
As to the light, it is nowhere shown that it was customary or even desirable in the operation of this or any other railroad to equip derailers with such a signal. Apparently lights on a derailer are not used on storage tracks where, as at the place of the accident, an automatic block system functions.
Nor do we find any evidence upon which a jury could find negligence of other employees of the carrier in setting the derailer without warning the decedent. On the first backward movement into the storage track, the engineer and fireman were in the engine cab at the front of the train. There is no evidence that either left that posi-
The evidence shows without contrary intimation that on the first movement into the storage track the twelve cars to be picked up later were south of the crossing and therefore more than an eighth of a mile from the switch. “When the cars or the train was backed into the pass track to let the northbound train pass, I [the conductor] threw the switch and the derailer and then came back to the crossing to await the other movement—to keep from hitting an automobile.” “When that movement was made—when they backed out on the main line—I was at this crossing, protecting the crossing. In the backing up movement I protected the crossing and then they cut out the four cars. The engine came over the crossing; cut off somewhere five or six cars south of the crossing. I was not up north of the engine when they cut the cars out. I was back up here. I rode the caboose car back. When they came on down I stayed on the caboose car and Mr. Brady stayed where the four or five cars were. He cut those out. I didn‘t see him. I was checking on those cars. I had left the caboose. I was not far from those twelve cars so I left the caboose to check up on the cars. While I was over there I heard the blast of the locomotive engine. I didn‘t see how the cars were derailed—left the track—nor did I see where Mr. Brady was at that time.” Obviously the conductor, in order to get near the twelve stored cars,
The undisputed testimony as to the significant movements of the decedent, Brady, as given by the engineer, follows:
“When we backed into the pass or storage track the first time and got in there to wait for No. 30 to go by, I saw Mr. Brady close the switch and the derailer. Mr. Brady gave me the signal to come back out. He set the derailer not to derail and opened the switch for me to come out and I came on out. Then I pulled out and back down south on the northbound track beyond the crossing. Mr. Brady was on the four cars and I saw him get off these four cars. He rode back north on these four cars ‘til he got north of the switch. He got off the car and throwed the switch and got back and signaled me back. From the time I came out of the switch until I came back in there I never seen anybody else in there, other than Mr. Brady.”
With the record evidence as to the action of the crew in this condition, it appears obvious that there is nothing to show negligence by any of the other servants of the carrier.
We now turn to the third instance of alleged negligence. This is the existence to the knowledge of the carrier of a rail, opposite the derailer, so worn on top and sides that in the opinion of qualified experts it permitted the thrust of the east wheels of the car, as they rose over the “wrong end” of the derailer, to force the flange on the west wheels over the defective rail and so to derail the cars, when no such derailment would have occurred, “nine times out of
Such evidence, we assume, would justify a finding for petitioners, if the defective rail was the proximate cause of the derailment and the backing of the train improperly over the closed derailer a danger reasonably to be anticipated. As to the likelihood of cars passing over the wrong end of derailers, one witness with ten years’ experience as a brakeman testified that he recalled three or four instances. Another, the Superintendent of the railroad with 22 years’ experience said, “It happens very frequently. I would say yes, I have seen it 25 to 50 times.” The rule as to when a directed verdict is proper, heretofore referred to, is applicable to questions of proximate cause. Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351; St. Louis-San Francisco Ry. Co. v. Mills, 271 U. S. 344, 348; New York Central R. Co. v. Ambrose, 280 U. S. 486; Baltimore & Ohio R. Co. v. Tindall, 47 F. 2d 19; Texas Gulf Sulphur Co. v. Portland Gas Light Co., 57 F. 2d 801. Cf. Story Parchment Co. v. Paterson Co., 282 U. S. 555, 566.
The Supreme Court of North Carolina was of the view that striking a derailer from the unexpected direction “was so unusual, so contrary to the purpose” of the derailer that provision to guard against such a happening was beyond the requirement of due care. With this we agree. Bare possibility is not sufficient. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, at 475:
“But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”
Events too remote to require reasonable prevision need not be anticipated. It was so held as to an intervening
Affirmed.
MR. JUSTICE BLACK, dissenting:
Twelve North Carolina citizens who heard many witnesses and saw many exhibits found on their oaths that the railroad‘s employees were negligent. The local trial judge sustained their finding. Four members of this Court agree with the local trial judge that the jury‘s conclusion was reasonable. Nevertheless five members of the Court
Although I do not agree that the “uniform federal rule” on directed verdicts announced by the Court correctly states the law, I place my dissent on the ground that, whatever rule be applied, petitioner sufficiently alleged and proved at least two separate acts of negligence attributable to the respondent railroad but for which the decedent Brady would probably have escaped death. The first was the act of one of respondent‘s trainmen in negligently closing the derailer; the second, the act of respondent‘s maintenance crew in negligently keeping a defective rail opposite that derailer. Proof of either was sufficient in itself to support a jury verdict against respondent under the terms of the Federal Employers’ Liability Act.2
Negligence in closing derailer. A contributing cause to decedent‘s death was that the derailer was in a closed position at the time the engineer backed the engine and four cars into it. That the derailer should have been open is not disputed. The evidence was sufficient to show that the employee who negligently closed the derailer must have been either the flagman, the conductor, or the decedent. The flagman expressly denied that he closed the derailer, but the conductor made no such denial. Petitioner, although deprived of decedent‘s testimony, did produce evidence from which the jury could find that it was not decedent who closed it. Testimony established that decedent knew of the existence and location of the derailer, that he was an experienced brakeman, and that he would be aware of the danger of riding a freight car over a closed derailer. From these facts the jury could find that decedent thought the derailer was open since he would not likely have signalled the train over a closed derailer at the peril of his own safety and protection. Cf. Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351, 356. A similar inference is not justified as regards the flagman and conductor for the evidence shows that at the time of the accident both were a half mile away and therefore were not imperiled by the decedent‘s signalling back the train and were not in a position to have prevented the signal.3
Having thus brought forth evidence that one of respondent‘s employees negligently closed the derailer and that decedent was not that employee, petitioner had proved a case for the jury. I cannot agree with the view apparently adopted by the Court that the petitioner was required to pin the negligence on a particular one of decedent‘s fellow employees. No such burden is imposed by the Federal Act. It provides merely that a railroad is liable “for . . . death resulting in whole or in part from the negligence of any of the . . . employees.” (Italics supplied.)4
Negligence in keeping defective rail opposite derailer. There was evidence to show that the rail of the pass track opposite the derailer had been used for twenty-six years; that the top of the rail was decayed, rusty, badly worn, and thin; that with bare fingers metal slivers could easily be picked from both sides of the rail; and that some of the cross ties were old, not properly supported by ballast, and sloped toward the defective rail. Petitioner then offered expert evidence, contradicted by respondent‘s expert evidence, that the derailment would not have occurred but for this defective rail. The Court declines to give any effect whatever to all of this evidence on two stated grounds: (1) That the rail was suitable for ordinary use and the backing of the train improperly over the closed derailer was not “a danger reasonably to have been anticipated“; (2) That the “weak rail” was not the “proximate cause” of the death.
It is difficult to imagine how, except by sheer guessing, or by drawing upon some undisclosed superior fund of wisdom, the Court reaches the conclusion that respondent
Nor is it easy to comprehend why the defective rail was not the “proximate cause” of the injury. It was the last “link in an unbroken chain of reasonably foreseeable events” which cost the employee his life. Surely this rail
MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR. JUSTICE RUTLEDGE concur in this opinion.