Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, to recover damages for the death on May 14, 1948, of plaintiff's decedent, John P. Wetherbee, a switchman employed by defendant railway company. At the time of his death Wetherbee was 40 years of age, and had been in defendant's employ for 20 years. He was married, had four children of the ages of 17, 15, 8 and 5 respectively, and prior to May 14 had been in good health.
At the time of his fatal injuries Wetherbee was engaged in his duties as a switchman. The accident occurred on the north J tracks, inside the plant of the Ruberoid Company at Joliet, Illinois, at approximately 2:25 P.M. Wetherbee died as a result of his injuries about 5:50 P.M. on the same day.
The Ruberoid plant is enclosed by a fence, the railway tracks coming through a gate on the north side. About 2:21 P.M. on May 14, one of defendant's switch engines entered the plant through this gate, shoving a Great Northern boxcar which it had picked up outside the fence. Track K, inside the plant, extended in a northerly-southerly direction. The engine and boxcar proceeded on this track until the boxcar coupled onto a Pennsylvania boxcar which had been standing on the track, Venske, one of the switchmen, making the coupling. On Venske's signal the engine and cars backed on track K until a switch was passed. Wetherbee threw this switch and gave the proceed signal, and the engine then started moving southwesterly on track J, shoving the two boxcars ahead of it. Wetherbee then mounted the front end of the leading car on the engineer's side, and held the grab iron, and his feet were in the stirrup on the side of the car over the wheels. After Venske had given the back-up signal, he started walking to a road crossing located just south of a concrete loading dock. It was his duty to protect this crossing from the oncoming movement.He walked through the field between tracks K and J, and at the point of derailment these tracks are approximately 84 feet apart. He reached the crossing just prior to the accident.
On the west side of and adjacent to track north J there is a concrete loading dock 108 feet long and about 4 feet high. There is a clearance of 5 feet 2 1/2 inches between the east side of the loading dock and the west rail of north J track. Prior to and on the date of the accident, planking extended on either side and between the rails where they were adjacent to the loading platform. Truckers employed by the Ruberoid Company customarily used the dock for loading and unloading trucks and on occasions had used pieces of wood to block the wheels of their trucks when standing at the dock.
The switch engine was proceeding about 3 miles per hour on the north J track when the leading boxcar, upon which Wetherbee was riding, ran up onto a piece of grey colored wood about 61 inches in length, which had been left alongside and inside of the west rail of the track. The leading wheels on the right side of the boxcar first rolled up on this board, and then moved along on the planking 1 1/2 inches outside the rail, for a distance of about 15 feet, and then, as a curve to the left was encountered in the track, the wheels on the forward end of the car continued forward and then veered to the right, and the boxcar started scraping against the face of the loading dock. The first notice by any of the crew that anything was amiss was when the engineer, O'Day, saw Wetherbee's body twist toward the dock and fall. O'Day had his hand on the brake valve and had expected to apply the brakes a few feet farther on, because the movement of the cars around the curve would have carried Wetherbee out of his sight. Upon seeing Wetherbee fall, he applied the brakes immediately, but before the engine and boxcars were stopped, the car on which Wetherbee was riding scraped along the dock for about 15 feet and he was crushed between the dock and the boxcar, sustaining fatal injuries. When the wheels of the boxcar left the rails, no jar was felt in the engine. The first knowledge that O'Day had of the derailment was when he stepped down from the engine to go to Wetherbee's aid. It is likely that Wetherbee also did not realize the car was derailed when the wheels were traveling on the planking, for he gave no warning signal, and did nothing to protect himself.
Plaintiff contends that it is the duty of the railroad to furnish its employees a reasonably safe place to work, and that the duty is non-delegable and follows the servant when working for the railroad at the premises of another. In the case at bar plaintiff claims the negligence of decedent's fellow employees was the proximate cause of Wetherbee's death.
Defendant contends that the responsibility for the board being on the tracks was solely that of the Ruberoid Company, and that Wetherbee himself was the only one of defendant's employees who had either the duty or the opportunity to keep a proper lookout to discover the presence of the board on the tracks.
The trial court denied defendant's motion for a directed verdict, and submitted the issues to a jury upon a general verdict. The jury awarded damages of $80,000. The court thereafter denied defendant's motions for judgment notwithstanding the verdict and for a new trial.
Rule 103 of defendant's rules provided: "When cars are pushed by an engine * * * a trainman must take a conspicuous position on the leading car; when pushing cars on curves or where the view is obstructed, trainmen must be spaced on the cars so as to insure safe movement. Employee riding the leading car must maintain a sharp lookout ahead and regulate the movement by proper hand signal. Other employees on the engine or cars must be prepared to act promptly on such signals. When shifting cars over public crossings at grade not protected by a watchman, or by gates, a member of the crew must protect the crossing." And Rule 101 of defendant's safety rules provided: "Employees are cautioned to be on the lookout for overhead or side obstructions along tracks, engines or cars on adjacent tracks and rubbish or obstructions near tracks, when riding on, or in getting on or off engines or cars."
The Federal Employers' Liability Act provides that a railroad carrier, while engaged in interstate commerce, shall be liable in damages to any employee "for * * * injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, * * *." 45 U.S.C.A. § 51.
It will be observed that the act imposes liability if the injury to the employee resulted in whole or in part from the carrier's negligence. If there is evidence to sustain a jury finding that defendant's breach is a "contributing proximate cause" of the injury, a verdict for the plaintiff will be sustained. Carter v. Atlantic & St. Andrews Bay Railway Co., 338 U.S. 430, 435, 70 S. Ct. 226, 94 L. Ed. 236. But the act does not make a railroad company an absolute insurer against personal injuries suffered by its employees. Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S. Ct. 413, 93 L. Ed. 497. The questions remain, Was the carrier negligent, and if so was such negligence a proximate cause of plaintiff's injuries? Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 67, 63 S. Ct. 444, 87 L. Ed. 610. Negligence still is the test of liability.
We are unable to discover any evidence in the record to warrant a finding that defendant's negligence caused the board responsible for the derailment to be alongside the west rail of the track. This board, or similar boards or blocks, were not used by nor were they brought into the Ruberoid Company plant by any employee of the defendant. Such boards were not used in any way to further the work of or assist employees of the defendant. It follows, we think, that the defendant was not negligent because the board was left upon the track.The question of whether defendant's employees should have discovered before the accident ...