287 F.2d 394 | 2d Cir. | 1961
Lead Opinion
Plaintiff, suing under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, and the Boiler Inspection Act, 45 U.S.C. § 23, recovered a verdict and judgment for $25,000 and costs for the injuries he sustained in the course of his work for defendant as a yard brakeman when he slipped and fell on sand and oil located on the platform of one of defendant’s switching engines. Under the court’s charge the jury was directed to find for the plaintiff if the defendant had been negligent or if it had failed to keep its locomotives in the safe condition required by the Boiler Inspection Act. Defendant now appeals on the grounds that there was insufficient evidence to support a finding of negligence under the FELA and that the FBI A does not impose liability for dangerous conditions created by the temporary presence of foreign matter on its locomotives.
We conclude that there was sufficient evidence to justify submission of the case to the jury on the issue of negligence. By his own testimony the yard conductor, on discovering plaintiff lying unconscious on the engine platform, noticed that sand and oil were present on
Defendant’s second contention is that the FBIA, 45 U.S.C. § 23, imposes liability only for mechanical or structural defects, and not for dangerous conditions caused by the temporary presence of foreign matter. But the statute itself contains no such limitation, and instead requires all locomotives and their parts and appurtenances to be “in proper condition and safe to operate * * * without unnecessary peril to life or limb.” Furthermore, the Supreme Court expressly rejected such a narrow reading of § 23 in Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 487-488, 63 S.Ct. 347, 352, 87 L.Ed. 411.
In the Lilly case the plaintiff had suffered injuries in a fall from the top of a locomotive tender which had become icy in violation of a rule of the Interstate Commerce Commission. Sustaining a jury verdict for plaintiff the Supreme Court said: “The use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems to us to involve ‘unnecessary peril to life or limb’- — enough so as to permit a jury to find that the Boiler Inspection Act has been violated.” 317 U.S. 481, 486, 63 S.Ct. 347, 351. So the use of an engine whose surface has been made slippery by sand and oil may similarly be found by a jury to involve “unnecessary peril to life or limb” in violation of the FBIA.
Defendant contends that the Lilly case authorizes recovery for nonstructural or nonmechanical defects only where the dangerous condition results from a violation of an ICC rule. In Lilly the Court, after rejecting the argument that § 23 did not extend to such defects, referred to certain of the early cases denying liability on which the defendant here also relies,
We find no persuasive authority since the Lilly case to support the narrow construction of § 23 for which defendant contends. Defendant relies on Rauden-bush v. Baltimore & O. R. Co., 3 Cir., 160 F.2d 363, where the Third Circuit, distinguishing Lilly as relying on a Commission rule, held that the requirement of “secure sill steps” in 45 U.S.C. § 11 referred only to mechanical and structural defects, and was not applicable where an employee fell on newly fallen snow. But the applicability of § 23, which had been ruled out of the case by the district court, was not considered on appeal. Furthermore, in a later opinion by the Third Circuit in Terek v. Conemaugh & Black Lick R. Co., 3 Cir., 231 F.2d 564, 567, where plaintiff alleged but failed to prove that he fell on a slippery foreign substance, the court accepted without dispute plaintiff’s contention that “the defendant railroad would be responsible [under § 23] for injury caused by a foreign' substance on the floor of its locomotive regardless of fault.” In that case, as in Delevie v. Reading Co., 3 Cir., 176 F.2d 496, interrogatories were submitted to the jury inquiring whether a slippery foreign substance had made footing unsafe — a factor suggesting that trial courts in the Third Circuit consider such substances as creating liability under § 23. Defendant also relies on Camp v. Atlantic Coast Line R. Co., 251 Ala. 184, 36 So.2d 331, which refused to find liability under § 23 where there was doubt that the fall was caused by grease as alleged and where the grease may well have come from plaintiff’s own shoes. Even that case, however, recognized that the Act would be violated if a locomotive were made unsafe “because of the presence of dangerous objects or foreign matter.” 251 Ala. 184, 36 So.2d 331, 335.
We think the sounder view is represented by cases holding that dangerous conditions caused by foreign substances give rise to liability under § 23. In Minehart v. Southern Pac. Co., 136 Cal.App.2d 486, 288 P.2d 999, liability under § 23 was imposed on the authority of Lilly for a locomotive ladder made greasy by oil. In Zumwalt v. Gardner, 8 Cir., 160 F.2d 298, 304, the jury was permitted to find for the plaintiff if it concluded that dirt was present in the equipment controlling the brakes. In Atlantic Coast Line R. Co. v. Sweat, 5 Cir., 183 F.2d 27, § 23 was
It is clear that a permanently slippery surface would constitute unsafe equipment under 45 U.S.C. § 23. Bolan v. Lehigh Valley R. Co., 2 Cir., 167 F.2d 934; Louisville & N. R. Co. v. Botts, 8 Cir., 173 F.2d 164. For the reasons stated, we do not think the statute authorizes a different result simply because the dangerous condition is created by the presence of grease and oil.
Judgment affirmed.
. “From various cases denying recovery under the Act respondent attempts to extract a general rule that the Act covers only defects in construction or mechanical operation and affords no protection against the presence of dangerous objects or foreign matter. But there is no warrant in the language of the Act for construing it so narrowly, or for denying the Commission power to remedy shortcomings, other than purely mechanical defects, which may make operation unsafe. The Act without limitation speaks of equipment ‘in proper condition and safe to operate * * * without unneeessary peril to life or limb.’ Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb.”
. Ford v. New York, N. H. & H. R. Co., 2 Cir., 54 F.2d 342, certiorari denied 285 U.S. 549, 52 S.Ct. 405, 76 L.Ed. 939 (grease on locomotive grab iron); Reeves v. Chicago, St. P., M. & O. Ry. Co., 147 Minn. 114, 179 N.W. 689 (coal on engine steps); Riley v. Wabash Ry., 328 Mo. 910, 44 S.W.2d 136 (clinker hook on top of engine tender).
. See Bolan v. Lehigh Valley R. Co., 2 Cir., 167 F.2d 934, 936; O’Brien v. Chicago & N. W. Ry„ 329 Ill.App. 382, 68 N.E.2d 638, 646-648.
. See Delevie v. Reading Co., 3 Cir., 176 F.2d 496, 497; Baltimore & O. R. Co. v. Groeger, 6 Cir., 288 F. 321, 324, reversed on other grounds 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Richter & Forer, Federal Employers’ Liability Act, 12 F.R.D. 13, 47.
Concurrence Opinion
(concurring).
The language of the Boiler Inspection Act, 36 Stat. 913, § 2 (1911), 45 U.S.C.A. § 23, does not suggest to me a Congressional purpose to impose on railroads an absolute duty to keep the surfaces of locomotives and tenders as free from foreign matter at all times, as an operating room before surgery. If the Act does this, I see no way of limiting the requirement to such substances as oil and grease; it must extend also to substances as unavoidable in railroad operation as snow and ice. Such a construction means that railroads face an inevitable conflict between the duty thus imposed, carrying the sanction of a $250 penalty for “each and every such violation,” 45 U.S.C.A. § 34, as well as of liability to employees, and their duty to render reasonable service to passengers and shippers; if the New Haven chose to regard the former as paramount, there would, I fear, be many occasions during the New England winter when we would be bereft of the presence of our colleagues from Connecticut and Vermont. Neither does anything in the legislative history of the Act afford the slightest basis for such a construction ; indeed, it points rather in the opposite direction.
Against this we now have Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411. That opinion seems to me to shift rather uneasily between the extreme position urged by the plaintiff and embodied in the judge’s instruction here, and a narrower holding based on Interstate Commerce Commission Rule 153. If that decision were our own, I would limit it to the latter ground, see Urie v. Thompson, 1949, 337 U.S. 163, 191, 69 S.Ct. 1018, 93 L.Ed. 1282, believing that any incongruity in having the standard of liability differ according as a practice with respect to locomotives and tenders was or was not required by a rule of the Interstate Commerce Commission was less undesirable than having the standard differ as between the locomotive and tender on the one hand and rolling stock covered by the Safety Appliance Act on the other, see Raudenbush v. Baltimore & Ohio R. Co., 3 Cir., 1947, 160 F.2d 363, or as between railroad power plants and those of competitive carriers by land and air who are subject to a liability to their employees that is absolute but limited. However, when the precedent is a decision of the Supreme Court, our handling must be more literal; despite my own belief that the result goes beyond any purpose signified by Congress, I think the interpretive scale comes down slightly on the side that the Lilly opinion went all the way Judge CLARK says. I concur for affirmance solely on that ground; for if the charge with respect to the Boiler Inspection Act was in error, a new trial would be required despite the correctness of the instruction and the adequacy of the evidence under the Federal Employers’ Liability Act, United New York and New Jersey Sandy Hook Pilots Ass’n v. Halecki, 1959, 358 U.S. 613, 619, 79 S.Ct. 517, 3 L.Ed.2d 541.
. The initial debate on the floor of the House indicated that the legislators were primarily concerned with boiler explosions. Representative Mann, chairman of the House Committee on Interstate and Foreign Commerce, which reported the bill, said “It is the belief of all people concerned, both the railroads and the employees, that the passage of this bill will materially result in the lessening of boiler explosions.” 46 Cong.Rec. 2071 (1911). Representative Robinson spoke of accidents caused by “defective boilers,” id. at 2072, and Representative Peters of explosions, steam pressure, and the need to inspect boilers from the inside, id. at 2074.
The broadening of the Act in 1915 was recommended by the Senate Committee on Interstate Commerce in a one-page
“This measure provides for the inspection of the entire locomotive. Experience has shown that this is necessary and desirable for the proper safeguarding of the lives of those who travel and of those engaged in the operation of locomotives.”
The House Report on the 1924 amendment, 68th Cong., 1st Sess., No. 490, reprinted a letter from the Interstate Commerce Commission which spoke in passing of accidents “resulting from the failure of some part of appliance of the locomotive or tender.” P. 3. The Senate Report, No. 740, simply reprinted the House report with approval.
Concurrence Opinion
(concurring).
I concur in the result and join my colleagues in affirming the judgment. In the light of Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411, the trial court’s charge to the jury with reference to plaintiff’s claim of defendant’s liability to him under the Boiler Inspection Act, 45 U.S.C.A. § 23 was not erroneous. Until that decision is clarified a trial court is justified in charging the jury that the presence of any unstable foreign substance on the exterior of a locomotive, irrespective of how the substance came to be there, conclusively establishes that the railroad, as when a defective boiler explodes, has negligently violated its duty to its employees of providing them with safe places in which to work.
Like Judge FRIENDLY, I arrive at this result with great reluctance, and if I did not consider ourselves bound by the language in Lilly v. Grand Trunk Western R. Co., supra, I would reverse and remand for a new trial.