Burns v. Penn Central CompanyBurns v. Penn Central Company
Robert M. Peet, New York City, for defendant-appellee.
Teresa M. Burns, widow of George V. Burns and administratrix of her deceased husband‘s estate, appeals from the judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing her action for the wrongful death of her husband during the performance of his duties as a trainman for the Penn Central Company. This suit authorized by the Federal Employers’ Liability Act,
On March 15, 1969, the decedent Burns, a longtime employee of the defendant, was working as a brakeman on a passenger run which passed over the 138th Street Bridge in Manhattan and, en route downtown, stopped to load and unload passengers at a station on 125th Street. As was customary for trainmen to do on this run, Burns opened the side and then trapdoor of one of the cars once the train had passed over the 138th Street Bridge. This action prepared the train for the entrance and departure of passengers at the 125th Street station. To prevent, as prescribed by company rules,1 attempts by passengers to board or leave the train between stations, Burns followed the also customary practice of assuming a position on the bottom step in the open doorway. With the train slowly approaching the 125th Street station, a rifle shot from the vicinity of 128th Street found Burns in this exposed posture and killed him instantaneously. Unbeknown to Burns and the other employees on the train, there had in the last ten months been four stonings of passenger cars within three blocks of the site of Burns’ slaying and an additional four stonings within 25 blocks. The defendant‘s records, however, evidence its knowledge of these stonings. Whether, in light of this knowledge of the stonings and the general conditions in the Harlem area, the defendant was obliged to take measures to ensure that its employees were not, as Burns in fact was, unwittingly victimized is the subject of the complaint under review.
As early as 1955, Judge Jerome Frank was able to observe that “the more recent Supreme Court decisions make it clear that, under that Act (the FELA), the jury‘s power to draw inferences is greater than in common-law actions.” Cahill v. New York, New Haven & Hartford R. R., 224 F.2d 637, 640 (2d Cir.) (Frank, J., dissenting) rev‘d, 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790 (1955) (per curiam), order of reversal recalled & amended, case remanded, 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075 (1956) (per curiam). Two years later the Supreme Court set forth the test for FELA claims to go to a jury in a manner which left little doubt that Judge Frank‘s characterization was right:
Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.
Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957) (emphasis added). In Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), the Court then offered a compelling and memorable illustration of the breadth of the applicable test by upholding a verdict allowing a railroad crew foreman to recover for serious injury sustained as the result of a bite by an insect which the jury could infer had come from or been attracted by a fetid pool which the jury could infer the railroad company had been negligent to maintain.
Thus, unless, as in Inman v. Baltimore & Ohio R. R., 361 U.S. 138, 140, 80 S.Ct. 242, 244, 4 L.Ed.2d 198 (1959) (flagman killed by drunken motorist at well-lit intersection with all regular railroad crossing signals in working order and no record of similar accidents at site), “the evidence here was so thin that, on a judicial appraisal, the conclusion must be drawn that negligence on the part of the railroad could have played no part in petitioner‘s (here, decedent‘s) injury,” the district court‘s decision that a jury verdict was dispensable was contrary to established law. Plainly, in the instant case, the evidence offered by the plaintiff to support a jury finding that the defendant could have foreseen the type of injury incurred and therefore was negligent in the fulfillment of its duties to its employee under the FELA was not so miniscule as to compel such a conclusion. Based on the railroad‘s actual knowledge of stonings in the vicinity in recent months and its constructive (and indubitably actual) knowledge of the generally dangerous conditions prevailing in the neighborhood in which the fatality transpired, the jury would have acted well within its authority under the FELA by returning a verdict for Mrs. Burns. In view of governing Supreme Court precedent, then, the judgment for the defendant railroad must be reversed.
Nor does a recent decision of this court, Hartel v. Long Island R. R., 476 F.2d 462 (2d Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 273, 38 L.Ed.2d 224 (1973), require, as the district court erroneously assumed,3 a different result. The case is easily distinguished in light of its peculiar facts. A ticket agent for the railroad arrived at the Mineola station, where he regularly worked, to be met by three men intent on holding him up. In attempting to flee, Hartel was shot and killed. His widow then sought to recover a damages award against the railroad under the FELA. In order to prove that the assault suffered by her husband was actually, or reasonably should have been, foreseen by the railroad, Mrs. Hartel sought to introduce into evidence proof that in the past four years there had been ten robberies or attempted robberies at stations run by the defendant within approximately 5-30 miles of the Mineola station. The district court refused to allow this proof, Hartel v. Long Island R. R., 356 F.Supp. 1192 (S.D.N.Y.1972), and a divided panel of this court upheld the district court‘s ruling on the ground that the prior incidents offered to establish the defendant‘s ability to foresee Hartel‘s misfortune did not occur at the “exact locus of the incident giving rise to the litigation.” Hartel v. Long Island R. R., supra, 476 F.2d 462 at 464. In contrast, in the instant case, the evidence of the recent stonings was obviously relevant to the jury‘s assessment of foreseeability because those incidents occurred at “substantially the same place” as the one prompting the litigation under review. See Cahill v. New York, New Haven & Hartford R. R., 236 F.2d 410, 411 (2d Cir. 1956) (per curiam), cert. denied, 352 U.S. 972, 77 S.Ct. 362, 1 L.Ed.2d 325 (1957), (cited approvingly in Hartel, supra, 476 F.2d 462 at 464). Mrs. Burns is entitled, then, nothing in Hartel to the contrary, to a jury verdict premised upon a record including proof of incidents of a similar nature within recent months transpiring in the general vicinity of the accident.4
The judgment for the defendant railroad is therefore reversed and the case remanded to the district court for proceedings in conformity with this opinion.
Reversed and remanded.
J. JOSEPH SMITH
UNITED STATES CIRCUIT JUDGE
Notes
Employees in the discharge of their duties may open side and trapdoors, and at stations the doors may be opened only on platform side.
Employees must be on the alert at all times, particularly at stations, to take necessary action in event passengers attempt to board or leave moving trains.