249 F.

2d 572

The NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY, Defendant, Appellant,
v.
Joseph DOX, Plaintiff, Appellee.
No. 5294.

United States Court of Appeals First Circuit.

November 22, 1957.

Noel W. Deering, Boston, with whom David W. Walsh, Lexington, Mass.,

was on brief, for appellant.
Hyman Katz, Boston, Mass., with whom Bear & Bear, Boston, Mass., was
on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN,
Circuit Judges.
PER CURIAM.

This was a complaint filed under the Federal Employers' Liability Act, as
amended, 45 U.S.C.A. 51 et seq., by a machinist in the employ of The New
York, New Haven & Hartford Railroad Company. The district court, being of
opinion that plaintiff had shown enough to get to the jury, submitted the case to
the jury, and after that body had returned a verdict for the plaintiff the district
court declined to enter judgment for defendant notwithstanding the verdict. See
Rule 50(b) Fed.Rules Civ. Proc. 28 U.S.C.A. On the present appeal from the
judgment for the plaintiff entered pursuant to the jury verdict, the sole question
presented to us by appellant is a frequently recurring one whether the district
court committed reversible error in leaving the case to the jury. We affirm the
judgment of the district court.

So that appellant may be under no misapprehension of the grounds of our

affirmance, we say that we recognize the following propositions to be true
beyond doubt:

1. However archaic and outmoded may be the principles of law applicable, the
Congress deliberately chose, in the Federal Employers' Liability Act, to make
the carrier's liability dependent upon a proof of fault or negligence on the
carrier's part.

2. Laying aside certain common law defenses which have been modified or
abolished by the Federal Employers' Liability Act, as amended, and focusing on
the issue of negligence upon which the carrier's prima facie liability is made to
depend, a Federal Employers' Liability Act case is just like any other case of
personal injuries alleged to be due to negligence, so far as concerns the issues of
negligence and of "proximate cause".

3. Therefore, plaintiff's right to a jury trial, as guaranteed by the Seventh

Amendment to the Federal Constitution, is not an unqualified right to have the
jury pass on issues of negligence and proximate cause in all cases. At the date
of the adoption of the Seventh Amendment, and for centuries prior thereto, the
common law had prescribed a function to be performed by the trial judge, as
well as a function to be performed by the jury, in the determination of issues of
negligence and of proximate causation. See Herron v. Southern Pacific Co.,
1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857. The jury was the body
competent to decide all questions of credibility of witnesses, and all questions
of fact fairly in dispute, together with inferences reasonably to be drawn
therefrom. But the case might never reach the jury, because the trial judge had
to determine the preliminary issue whether the plaintiff had shown enough
from which a fair-minded jury might legitimately return a plaintiff's verdict.
This preliminary issue is usually said to be a "matter of law", since it is for the
court to decide, but it is really a preliminary exercise of judgment on the facts.
As we said in Channell v. Sampson, 1939, 1 Cir., 108 F.2d 315:

"Passing upon the motion for a directed verdict, the trial judge had to exercise a
judgment on the facts in determining whether there was substantial evidence
from which it would not be unreasonable for the jury to infer negligence.
Similarly, in reviewing the trial judge's action on such a motion, the appellate
court must exercise a judgment on the facts, but from a less advantageous
viewpoint. In this case, for example, the testimony of one of the eyewitnesses
was an elaboration of diagrams which he was drawing on a blackboard in the
courtroom, and read in print the testimony is quite unintelligible. In many
borderline cases, the appellate court might uphold a ruling either way, because
it could not say, from a reading of the cold record, that the trial judge was
clearly wrong in his judgment as to the sufficiency of the evidence. The present
might indeed be such a case." 4. Of course, an honest and conscientious
intermediate appellate court may possibly commit an error in its judgment on

the facts, either in ruling that the plaintiff had shown enough to get to the jury,
or in ruling that it was a proper case for a directed verdict for defendant. In
either situation, the intermediate appellate court runs the risk of being reversed
by the Supreme Court on certiorari, as has been done often enough in both
situations. See Davis v. Kennedy, 1924, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed.
212; Baltimore & Ohio R. R. Co. v. Groeger, 1925, 266 U.S. 521, 45 S.Ct. 169,
69 L.Ed. 419; Missouri Pacific R. R. Co. v. Aeby, 1928, 275 U.S. 426, 48 S.Ct.
177, 72 L.Ed. 351; Kansas City Southern Ry. Co. v. Jones, 1928, 276 U.S. 303,
48 S.Ct. 308, 72 L.Ed. 583; Atlantic Coast Line R. R. Co. v. Davis, 1929, 279
U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601; Chesapeake & Ohio Ry. Co. v. Mihas,
1929, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Pennsylvania R. R. Co. v.
Chamberlain, 1933, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Swinson v.
Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 1935, 294 U.S. 529, 55 S.Ct.
517, 79 L.Ed. 1041; Jenkins v. Kurn, 1941, 313 U.S. 256, 61 S.Ct. 934, 85
L.Ed. 1316; Bailey v. Central Vermont Ry., Inc., 1943, 319 U.S. 350, 63 S.Ct.
1062, 87 L.Ed. 1444; Tennant v. Peoria & Pekin Union Ry. Co., 1944, 321 U.S.
29, 64 S.Ct. 409, 88 L.Ed. 520; Blair v. Baltimore & Ohio R. R. Co., 1945, 323
U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Lavender v. Kurn, 1946, 327 U.S. 645,
66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pacific R. R. Co., 1947, 329 U.S.
649, 67 S.Ct. 598, 91 L.Ed. 572; Stone v. New York, Chicago & St. Louis R. R.
Co., 1953, 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441.
7

On the other hand, the Supreme Court may agree with the appraisal of the
proven facts made by the intermediate appellate court. Western & Atlantic R.
R. v. Hughes, 1929, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; Brady v.
Southern Ry. Co., 1943, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Eckenrode
v. Pennsylvania R. R. Co., 1948, 335 U.S. 329. 69 S.Ct. 91, 93 L.Ed. 41;
Herdman v. Pennsylvania R. R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1
L.Ed.2d 508.

5. Whether or not the Supreme Court should have issued a writ of certiorari to
bring up for review the determination below in the above-cited cases is no
proper concern of the intermediate appellate court. However that may be, the
intermediate appellate court, in a case like the present, has an inescapable
function to perform in deciding whether the plaintiff proved enough to get to
the jury. We have to perform that function honestly and conscientiously, let the
chips fall where they may in so far as possible further appellate review is
concerned.

6. Where the trial judge has made the preliminary determination that there
ought to be a directed verdict for defendant, we often find it difficult to disagree
with the district court's judgment on the facts, with the result that a judgment

for defendant is affirmed. But where the district court has thought otherwise,
and has left the case to the jury, which has found for the plaintiff, a judgment of
reversal on appeal would amount to setting our judgment on the facts against
both that of the trial judge and of the jury, an eventuality that naturally makes
us hesitate even more.
10

In the case at bar, the plaintiff-appellee proved facts tending to show the
following: Dox had worked as a machinist for the appellant railroad since
1918. On December 5, 1955, he was engaged in servicing a Diesel engine
which was standing motionless in an engine house. In the course of his
employment he had occasion to walk along a running board or catwalk on the
outer edge of the Diesel engine. This catwalk was composed of two split levels,
the upper level being 6 ft. 3 in. above the concrete floor of the engine house and
the lower level being 5 ft. 6 in. above the floor. The step down to the lower
level was thus 9 inches. The Diesel engines which were owned and operated by
the defendant railroad were equipped with a safety rail or guard rail at the
exterior edge of the catwalk at about 3 feet above the surface of the catwalk.
On the day in question, Dox was working upon a Diesel engine which had
recently been rented by the railroad from the U. S. Army and which had no
guard or safety rail on the outer edge of its catwalk. Instead of that, this
particular Diesel engine had attached to the side of the engine, and near the
roof, at a height of 6 feet above the running board, a pipe handrail which bent
sharply downward at the step down from the upper to the lower level of the
catwalk. As Dox was stepping down to the lower level of the catwalk, he lost
his grip on the overhead handrail and fell down to the concrete engine floor
below, thereby sustaining the injuries for which this action was brought.

11

On the issue of negligence, the trial court charged the jury, in terms which were
satisfactory to the defendant, as follows:

12

"The plaintiff says that he was injured through the failure of the railroad to
exercise due care, specifically by failing to provide him with a safe place to
work. It is the duty of the railroad company, under the Federal Employers'
Liability Act, to supply to railroad employees a reasonably safe place for them
to perform their work. There is no obligation to provide the finest and best
equipment in the land. But there is a duty to furnish that sort of place to work
which, taking into account scientific and technological advances and taking
into account general circumstances, is reasonably safe.

13

Now, it may very well be that a railroad company, with respect to part of its
equipment, goes beyond the standard of what is reasonably safe. If the railroad
company goes beyond the standard, then it does not follow that it must, with

respect to all its equipment, maintain this excessively high standard. What the
railroad is required to do is to furnish a reasonably safe place, and in
considering what is a reasonably safe place you are to take into account the
practices in the industry, including the practices of the defendant, of other
railroad companies and of others who have such equipment.
14

The fact that a railroad borrows or leases equipment from the United States
government or from anybody else neither enlarges nor reduces its duty. That is
to say, the fact that The New York, New Haven & Hartford Railroad in this
particular case happened to be using equipment which was owned by the
United States and leased by the New Haven is of no practical significance
because the duty of the New Haven, whether it uses its own equipment or uses
leased equipment, is to furnish a reasonably safe place to work.

15

Needless to say, I am not going to tell you whether I think that this particular
Diesel engine was reasonably safe. It is entirely a question of fact for you as to
whether you think, taking into account the type of catwalk that was there,
which involved a step down from one level to another level, it was reasonably
safe not to have a guard rail at the side. I do tell you, however, it is the burden
of the plaintiff, Mr. Dox, to persuade you by the preponderance of the credible
evidence that there was a lack of safety and that there was a failure on the part
of the railroad to exercise the care which a reasonable and prudent railroad
would exercise, taking into account the general nature of such equipment in the
railroad industry."

16

From an inspection of the photographs introduced in evidence as exhibits, it is

obvious enough that a guard rail such as the railroad had on its own Diesel
engines, running along the outside edge of the catwalk, would have been safer
than was the overhead handrail with which this particular locomotive was
supplied. We think a jury could fairly conclude that the Diesel engine,
equipped as this one was, did not constitute a reasonably safe place to work
within the test laid down by the district judge.

17

A judgment will be entered affirming the judgment of the District Court.