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Keaton v. Atchison

July 18, 1963


Author: Kiley

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.

KILEY, Circuit Judge.

This suit is under the Federal Employers' Liability Act.*fn1 Verdict and judgment were for plaintiff. Defendant Santa Fe has appealed.

Plaintiff, a Santa Fe cook, broke his leg when he fell in the vestibule of a pullman car. He had left the diner kitchen of the Super Chief, walked through the pullman car and got off at its vestibule to get provisions at the commissary a short way from the cars. On his return he boarded the pullman car, slipped in the vestibule and was injured.

Santa Fe contends the District Court erred in denying its motion for directed verdict. It argues there was no competent evidence to prove that it negligently failed to provide plaintiff a safe place to work.

On this contention we must view the evidence, and all the inferences reasonably drawable therefrom, in the light most favorable to plaintiff and decide whether reasonable men may with fair judgments differ from one another. Threatt v. United States Steel Corp., 283 F.2d 411 (7th Cir. 1960). Also, conflicts in the testimony must be resolved in plaintiff's favor. Ziegler v. Equitable Life Assur. Soc'y., 284 F.2d 661 (7th Cir. 1960), 5 Moore Federal Practice 2315-16 (2d ed. 1951). And if there is doubt, or the question is close, the case should go to the jury. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444 (1943).

There was testimony that plaintiff walked up the steps to the car, stepped into the vestibule, his right foot slipped from under him and he fell; that he felt the steel vestibule floor and it was "very slippery," "slippery as ice," and felt "damp, wet" and "felt * * * and looked like * * * liquid soap;" that normally a passenger rug is placed on the vestibule floor but it was not in use when he slipped and fell; that about fifteen minutes before, and also right after this occurrence, the vestibule had an "accumulation of dirt, and silt, and moisture" and that it was later cleaned up; that about two hours before plaintiff fell, the cleaning women had scrubbed the vestibule with a pail of water and soap solution; and that the weather was "humid and warm that day."

We think that evidence is sufficient for plaintiff's prima facie case. The District Court did not err in denying the motion for directed verdict and in submitting the case to the jury.

Santa Fe does not argue that the verdict is excessive. This fact, and the fact that there is evidence to support the verdict, weakens Santa Fe's several contentions with respect to prejudicial conduct and rulings at the trial. Christian v. Hertz Corp., 313 F.2d 174 (7th Cir. 1963). We have considered all other contentions but shall discuss only those we deem necessary. Also, because appellant does not argue the verdict was excessive, we shall not consider contentions which bear only on the amount of damages. Chicago R.I. & P.Ry. Co. v. Gunn, 112 Ark. 401, 166 S.W. 568 (1914).

Plaintiff alleged negligence of Santa Fe in failure to provide a safe place to work, i.e., permitted the vestibule to become "grimy and slippery * * * by the presence of ice and other foreign substances * * *." Under Federal notice pleading,*fn2 this allegation was adequate to accommodate testimony, by witnesses for both sides, and argument to the jury that a vestibule rug normally in use for passengers was not on the floor when plaintiff slipped. The same is true of testimony of the vestibule being "wet from plain water." These were not new, surprising theories.

Santa Fe's steward testified that the vestibule had been dried up after plaintiff fell; and we cannot say the court committed prejudicial error in permitting plaintiff to testify about having heard at the time of injury a statement, "* * * those lowdown rascals * * * they wiped the floor * * * and [the soles of] his shoes." As to testimony of similar statements by other witnesses, what error there may have been was harmless. And what argument was made upon the testimony of the quoted statement does not seem to us to have been prejudicial in the vigorously tried case.

We have not been persuaded that in the trial of liability and damages together the claimed misconduct of plaintiff's attorney had "a prevailing influence upon the jury" to Santa Fe's detriment. 3 Am.Jur. 607. And we cannot hold that any claimed errors are "inconsistent with substantial justice." Rule 61, F.R.Civ.P.*fn3

We have considered, but deem it unnecessary to discuss, all other contentions made by appellant. We ...

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