Raymond G. Cahill v. The New York, New Haven & Hartford Railroad Company , 224 F.2d 637 ( 1955 )

SWAN, Circuit Judge.

mThis is an appeal from a judgment for . "f, , „ . the plaintiff m the amount of $90,000 in ,. , , , , . , .. an action brought under the Federal Em- , aa Atr c< n a on ployers Liability Act, 45 U.S.C.A. § 51 , , . , . . et seq., tried to a jury. The court denied A j- a j-a , , motions to direct a verdict, and to set ., ,, , , , .’ , „ aside the verdict and enter judgment for ,, , , , , . ,, ,, , the defendant, or, m the alternative, to , , . a a-grant a new trial. The contentions on , ,, ^ ,, , ,, ., appeal are (1) that there was no evidence of negligence on the part of the defendant which contributed to the plaintiff’s injuries, and (2) that the court erred in admitting evidence of other accidents at or near the place of the accident in suit, In our view the first point is decisive; hence the second need not be considered.

The accident happened: on a public highway in New Haven, Connecticut, known both as Forbes Avenue and U. S. Route 1. The highway runs substantially east and west. Use of it by motor vehicles, both passenger automobiles and trucks, is heavy. In the highway is a double line of railroad tracks which lead from the defendant’s Belle Dock freight yard, located north of Forbes Avenue and West of Tomlinson Bridge, into the highway and continue easterly over the bridge and along Forbes Avenue to Waterfront Street, where a single track crosses the southerly side of Forbes Avenue at right angles into Waterfront Street. When a switch engine or train of freight cars is using the tracks it is necessary to stop the motor vehicle traffic near the junction of Forbes Avenue and Waterfront Street. On the day of his accident, June 5,. 1953, the plaintiff, a brakeman in the employ of the railroad was assigned to flag eastbound motor traffic at this junction. He had never done such work before, and he was told by the Belle Dock yardmaster: “Well, be careful, and don’t worry about anything. The conductor will tell you on your way over what to do.” He left the yard on a switch engine, which stopped about 100 feet from Waterfront Street and the conductor then told him to get off and stop the eastbound motor traffic with a red flag. He did so without incident while the switch engine turned south into Waterfront Street. About forty-five minutes later he observed the switch engine returning with a string of freight cars loaded with coke. He again flagged the eastbound motor traffic until the train turned from Waterfront Street into the track on the northerly side of Forbes Avenue and proceeded westerly past the point where he was standing. This ended plaintiff’s duty to stop the eastbound traffic and he started to walk back toward the south side of the highway. There is an upgrade over Tomlinson Bridge. This caused the freight train to come to a sudden stop. The westbound motor vehicles which were following the train also stopped. Fearing that the slack in the couplings would cause the rear car to slide back into a stopped truck close behind it, the plaintiff hurried across the highway intending to turn an anglecock which would effect an emergency stop and prevent the train from rolling.back. Brakeman Wells turned the anglecock just before the plaintiff reached it. As he started to leave, Wells, who was senior in authority to plaintiff, told him to come back and stay there and hold the green truck which had stopped within five or six feet of the stationary rear car and directly behind it. Wells then began to get the motor traffic moving along the north side of the train, and the plaintiff with his read flag in his hand took up a position between the rear car and the green truck. He was about two feet from the car and three or four feet in front of the truck. When a trailer truck moved past the north side of the car, with close clearance, the plaintiff - peeked around the side of the car to see whether the trailer could clear. As he turned back toward the stationary green truck, this truck suddenly and without warning started up and struck the plaintiff, throwing him against the projecting coupling of the stationary rear car. The blow resulted in serious injury to his spine.

Several charges of negligence on the part of the railroad were asserted in the complaint, namely, (1) failure to provide plaintiff with a safe place to work; (2) failure to instruct and prepare plaintiff for the work he was assigned to do; (3) improperly directing him to work in an unsafe place with knowledge that such place was unsafe; and (4) failure properly to supervise the work in that the defendant did not prescribe proper methods of procedures, rules and regulations to cover the work in question, and (5) otherwise negligent conduct toward the plaintiff.

The duty to provide a railroad employee with a safe place to work is not an absolute duty; if it were the employer would be an insurer of the employee’s safety and negligence would be irrelevant. Under the Federal Employer’s Liability Act,, the employer’s duty is the same as that imposed by the common law, namely, to use reasonable care in furnishing his employees with a safe place to work.¹ All work on a railroad involves some danger, but it has to be done and the dangers involved do not involve liability provided the railroad takes all practicable precautions consistent with the conduct of the business. When the freight train came to a sudden stop on Forbes Avenue it was necessary to place a flagman to control the motor vehicles which had been following behind the train. Cahill’s position directly behind the stationary train and directly in front of the stationary truck would appear to be the safest position he could occupy while performing his duty as a flagman. He does not suggest that Wells was at fault in placing him there. Obviously the risk of being struck when the traffic began to pass the train would have been greater had he stood at either side of the rear car. The evidence furnishes no support for the charge of negligence based on failure to provide him with a safe place to work.

Other charges of negligence assert a failure properly to instruct Cahill or supervise his work. It is true he was inexperienced as a flagman, and he was given no specific instructions other than brakeman Wells’ direction to “stay there and hold that truck there.” But we cannot conceive what instructions or supervision could have been given that would have protected him against an accident of the kind that happened. An experienced flagman would have incurred no less risk than a novice from the sudden starting forward of a stationary truck five feet behind the stationary train. But even if it be assumed arguendo that he should have been warned to be especially vigilant and there was a breach of duty in this respect, it cannot be said that his injury resulted from such omission. The sole cause of his fnjury was the negligence of the truck driver. It is true that in the “but for” sense of causation the stalling of the train and the direction to Cahill to flag the traffic did contribute, for the accident could not have happened if those conditions had not existed. But neither condition was a cause in the legal sense.² It was certainly not to be anticipated that a stationary truck only three or four feet away would start up without warning and pin him against the stationary rear car. As the Supreme Court said in Brady v. Southern Ry. Co., 320 U.S. 476, at page 483, 64 S.Ct. 232, at page 236, 88 L.Ed. 239: “Events too remote to require reasonable prevision need not be anticipated.” And again in 320 U.S. at page 484, 64 S.Ct. at page 236: “The carrier’s negligence must be a link in an unbroken chain of reasonably foreseeable events.”

In the case at bar, as in the Brady case, we think that the evidence is such that a verdict for the defendant is the only reasonable conclusion. The trial court erred in not granting the motions to direct a verdict and to enter judgment non obstante veredicto.

Judgment reversed.

1 . Bailey v. Central Vermont Ry., 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444.

2 . See Orton v. Pennsylvania R. Co., 6 Cir., 7 F.2d 36; Sisson v. Southern Ry. Co., 62 App.D.C. 356, 68 F.2d 403; Chicago, M., St. P. & P. R. Co. v. Slowik, 8 Cir., 184 F.2d 920; Chesapeake & Ohio Railway Co. v. Burton, 4 Cir., 217 F.2d 471.