Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a judgment in favor of plaintiff in an action to recover damages under the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq., occasioned by the death of plaintiff's decedent resulting from the alleged negligence of defendant during a switching operation in defendant's yard at Bloomington, Illinois. The errors relied on are (1) the court's refusal to direct a verdict in favor of defendant and (2) the giving of two instructions for plaintiff.
Any detailed review of the evidence in a case of this character for the purpose of determining the propriety of the trial court's refusal to direct a verdict would be an idle and useless ceremony in the light of the recent decisions of the Supreme Court. This is so regardless of what we might think of the sufficiency of the evidence in this respect. The fact is, so we think, that the Supreme Court has in effect converted this negligence statute into a compensation law thereby making, for all practical purposes, a railroad an insurer of its employees. (See dissent of Mr. Justice Roberts in Bailey v. Central Vermont Ry., 319 U.S. 350, 358, 63 S. Ct. 1062, 1066, 87 L. Ed. 1444.)
The Supreme Court, commencing with Tiller v. Atlantic Coastline R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967, in a succession of cases has reversed every court (with one exception hereinafter noted) which has held that a defendant was entitled to a directed verdict. In the Tiller case, the Supreme Court reversed the Court of Appeals for the Fourth Circuit, 128 F.2d 420, which had affirmed the District Court in directing a verdict. The case, upon remand, was again tried in the court below, where a directed verdict was denied. For this denial the Court of Appeals reversed and again the Supreme Court reversed the Court of Appeals, holding that the District Court properly submitted the case to the jury. In Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520, this court reversed the District Court on account of its refusal to direct a verdict, and our decision, 134 F.2d 860, was reversed by the Supreme Court. In Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444, the Supreme Court of Vermont held that there should have been a directed verdict for the defendant, and the Supreme Court reversed the decision of that court. In Blair v. Baltimore & O.R. Co., 323 U.S. 600, 65 S. Ct. 545, 89 L. Ed. 490, the Supreme Court reversed the Supreme Court of Pennsylvania which had held that there should have been a directed verdict. In the recent case of Lavender, Administrator, etc., v. Kurn et al., 66 S. Ct. 740, the Supreme Court reversed the Supreme Court of Missouri which had held that there should have been a directed verdict for each of the defendants.
The only exception to this unbroken line of decisions is Brady v. Southern R. Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239, where the Supreme Court of North Carolina was affirmed in its holding that there should have been a directed verdict. This exception, however, is of little consequence in view of the fact that four members of the court dissented.
The case of Lavender v. Kurn, supra, the latest decision of the Supreme Court under the Federal Employers Liability Act, leaves little room for doubt but that a directed verdict by a trial court or a holding by any court sustaining a directed verdict will not meet with favor, even though the verdict involves speculation and conjecture. In the Lavender case, the Missouri Supreme Court, 189 S.W.2d 253, 259, held: "* * * that it would be mere speculation and conjecture to say that Haney was struck by the mail hook, and we are constrained to rule that plaintiff failed to make a submissible case on that question." In response to this holding the Supreme Court states [66 S. Ct. 744]: "It is no answer to say that the jury's verdict involves speculation and conjecture." A reading of the facts of that case, both as related by the Supreme Court and the Supreme Court of Missouri, reveals very clearly that the jury's verdict as to the cause of decedent's death, especially as it applies to the Illinois Central Railroad, amounted to nothing more than a guess on its part.
That the Supreme Court treats the question of negligence and proximate cause as a jury question in this class of cases is clearly shown by a study of these cases. Moreover, not only are these issues to be decided by the jury but its decision is unassailable. In fact, it is difficult to conceive of a case brought under this Act where a trial court would be justified in directing a verdict.
Plaintiff's deceased, Loyal S. Griswold, was head brakeman on defendant's train which operated between Bloomington, Illinois and Kansas City, Missouri. He was killed at about 3:40 A.M. January 25, 1943, in defendant's yard at Bloomington. This yard consists of a series of 15 tracks, numbered from 1 to 15, from the west to east and running north and south. Griswold's train, No. 93, consisting of about 57 cars, was standing on track 7 headed south. It had been made up preparatory to leaving the yard. A number of other trains were engaged in switching operations in the yard. Shortly before the fatal occurrence Griswold was on the engine of his train and talked to the engineer and fireman who were in their usual places. He got down from the engine and this was the last seen of him while alive.
Shortly after Griswold got off the engine of his train, a cut of 17 freight cars was shoved in a northerly direction on track 6 past the Griswold train. Although two switchmen had ridden with lanterns on the north end of these cars as they proceeded north on track 6 approaching Griswold's train, they got off before they reached the locomotive of the latter train. So no person was riding on the front car of this cut of cars being shoved north on track 6 at the time it approached and passed the engine on Griswold's train. There is evidence that the night was dark and that no warning of any kind was given concerning the movement of this cut of cars. Neither the engineer nor the fireman on Griswold's train was aware of the approach of the cut of cars on track 6 until they were opposite the engine of their train. As the cars went by, the engineer heard a sound as though the cars had run over something. He inquired of the fireman concerning the whereabouts of Griswold.
Griswold's unlighted lantern was found on the west side of track 6 (between tracks 5 and 6) about opposite the tank of the engine of his train, and his body was found across the west rail of track 6, some six or seven car lengths north of his engine. The distance between the nearest rail of track 6 and that of track 7 was approximately eight feet six inches. The clearance or unoccupied space between cars moving on these tracks was approximately four feet six inches.
Defendant argues that there is no prooof of negligence and even so, no proof that such negligence was the proximate cause of decedent's death. In view of the decisions of the Supreme Court, we think both contentions must be denied. Whether the pushing of the string of cars which caused decedent's death in the manner related amounted to negligence was for the jury.True, there is no proof as to how or why the deceased happened to be located in a place where he would be run over by these moving cars. Neither was there any such proof in the Tennant case, supra. There as here, the decedent when last seen alive was at a place where he had a right to be. Also there as here, there was no proof as to the reason or the occasion for the deceased being in a position where he might be killed by a movement of the train. In the Tennant case the Supreme Court held that the jury might infer that his death was the result of the defendant's negligence, and we think the same thing must be held in the instant case.
Defendant argues that the judgment should be reversed because of two instructions. They are: (1) "It was the duty of the employer of the deceased in this case to have used ordinary care and prudence in furnishing to the deceased, at the time of the accident in question, a reasonably safe place in which to work and to have used all reasonable precautions to maintain and keep such place in a reasonably safe condition," and (2) "The employee has a right to assume that his employer has exercised ordinary care with respect to providing him with a reasonably safe place of work."
It is not claimed in this court but that these instructions state correct principles of law. It is contended, however, that they should nor have been given because (1) there was no evidence in the case to which the instructions could be applicable, and (2) the complaint did not charge the breach of a duty to furnish a reasonably safe place in which to work. The first reason is predicated upon the theory that the rule requiring a master to furnish a servant with a reasonably safe place to work has reference only to the physical condition of the place itself, and not to the negligent acts of fellow employees. Cases are cited which have so held, including a number from Illinois. Typical of the latter is Peterson v. Chicago & Oak Park Elevated R. Co., ...