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Mitchell v. Missouri Pac. R. Co.

DECEMBER 30, 1968.

JACK S. MITCHELL, PLAINTIFF-APPELLANT,

v.

MISSOURI PACIFIC RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County; the Hon. JAMES W. GRAY, Judge, presiding. Reversed and remanded. MORAN, J.

Plaintiff appeals from a verdict directed in favor of the defendant at the close of all of the evidence by the Circuit Court of St. Clair County.

Plaintiff sued under the Federal Employers' Liability Act, 45 U.S.C. § 51, which reads in pertinent part:

"Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in commerce . . . for such 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, works, boats, wharves or other equipment."

Plaintiff alleged in his complaint that he was employed in interstate commerce as a laborer by the defendant, a common carrier; that he was required to scrape bird droppings and other foreign substances from defendant's bridge and in so doing the air became polluted with particles of bird droppings and other foreign substances which resulted in plaintiff's inhaling the foreign substances whereby he was caused to contract certain diseases. He further alleged that the defendant was negligent in one or more of the following respects:

"A. It failed to furnish plaintiff with a mask or other item to prevent inhalation of said foreign substances.

"B. It failed to furnish plaintiff with adequate and sufficient tools to perform said work without polluting the air.

"C. It failed to warn plaintiff of the dangers inherent in so performing his work.

"D. It failed to take any measure or do any act to prevent said pollution."

In Sinkler v. Missouri Pac. R. Co., 356 U.S. 326, 2 L Ed 799, 78 S Ct 758, the United States Supreme Court said at page 802: "However in interpreting the FELA, we need not depend upon common-law principles of liability. This statute, an avowed departure from the rules of the common law (cases cited) was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. (Cases cited.) The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier." This language was reiterated in Hopson v. Texaco, 383 U.S. 262, 15 L Ed2d 740, at 742, 86 S Ct 765.

In Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 88 L Ed 520, 64 S Ct 409, the Court said at page 412:

"It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. (Cases cited.)"

In Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 1 L Ed 2d 493, 77 S Ct 443, the Court said at page 499:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death."

Plaintiff contends that there was sufficient evidence in the trial court to furnish an evidentiary basis for a jury to find that defendant had actual or constructive knowledge of the danger of plaintiff's contracting histoplasmosis from his employment and that therefore the defendant had a duty to warn plaintiff of this danger or in the alternative it had a duty to furnish plaintiff with some ...


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