Plaintiff, while checking cars in a switching yard, was struck
by a car shunted down the next track. While the space between the
two tracks (in which he was standing) was sufficient to enable him
to keep out of the way of moving cars, the danger attending his
work would have been lessened if the space had been greater. The
accident occurred at night. The cars moved at from four to six
miles an hour; they were unlighted and unattended and, no one
warned plaintiff of their approach. He knew that switching was
being done. There was nothing to show that the ordinary practice
was departed from. He brought suit under the Federal Employers'
Liability Act, alleging that his injuries had been caused by the
failure to maintain an adequate space between tracks and by the
failure to warn him of the approach of the car.
Held:
1. The evidence is not sufficient to warrant a finding that
defendant failed in any duty owed plaintiff in respect of the
distance between tracks. Carriers, like other employers, have much
freedom of choice in providing facilities and places for their
employees, and courts will not prescribe the space to be maintained
between tracks, nor leave such questions to the uncertain and
varying opinions of juries. P.
276 U. S.
169.
2. In the absence of proof that plaintiff was exposed to some
unusual danger by reason of a departure from the practice generally
followed, it cannot be held that defendant was in duty bound to
give warning by ringing the engine bell or otherwise. P.
276 U. S.
170.
3. Except as specified in § 4 of the Federal Employers'
Liability Act, the employee assumes the ordinary risks of his
employment
Page 276 U. S. 166
and, when obvious or fully known and appreciated, the
extraordinary risks and those due to negligence of his employer and
fellow employees. On the evidence, it is held that plaintiff
assumed the risk. P.
276 U. S.
171.
292 S.W. 730 reversed.
Certiorari, 273 U.S. 688, to a judgment of the Supreme Court of
Missouri affirming a recovery of damages for personal injuries, in
an action under the Federal Employers' Liability Act.
Page 276 U. S. 167
MR. JUSTICE BUTLER delivered the opinion of the Court.
October 27, 1922, petitioner's railway system was being operated
by a receiver as a common carrier of interstate commerce.
Respondent was a car checker in the service of the receiver, and,
while employed in such commerce in petitioner's railroad yard at
Madison, Illinois, he was struck and injured by a shunted car. He
brought this action in the Circuit Court of St. Louis, Missouri,
claiming damages under the Employers' Liability Act. U.S.C. Tit.
45. c. 2, § 51. The amended petition alleged that plaintiff's
injuries were caused by the defendant's failure to maintain an
adequate space between the tracks in the yard and by the negligent
failure of other employees to warn him of the approach of the car.
After the suit was commenced, the receiver was discharged and the
railroad was returned to petitioner. The latter assumed the
obligations of the receiver and was substituted for him as
defendant. There was a verdict and judgment for plaintiff. The
defendant, alleging numerous grounds, moved for a new trial. It was
denied. The case was
Page 276 U. S. 168
taken to the Supreme Court, where the judgment was affirmed.
Allen v. Ross, 292 S.W. 732. This Court granted a writ of
certiorari. 273 U.S. 688.
The yard where plaintiff was injured included a lead track and,
connected with it, a number of parallel switch tracks, the centers
of which were about 12 feet apart. Plaintiff had been regularly
employed there as car checker for about 18 months, and his hours
were from 11 in the evening to 7 in the morning. His work required
him to be in the yard while switching was being done, and to go
from place to place to check and list cars that had been switched
and arranged on various tracks for the purpose of making up trains.
At the time of the accident, he was checking a string of cars that
had been placed on track 5, and was between it and track 4, about
125 yards from the lead. A switching crew was at work in the yard.
The engine was on the lead attached to from 20 to 25 cars that were
between it and switch 4. Two cinder cars were detached from the
end, while the string of cars was being pushed by the engine. They
were shunted by means of the switch to track 4, and by their own
momentum moved to the place where plaintiff was struck. The yard
was not artificially lighted. It was an ordinary starlight night,
without moon. The shunted cars moved at moderate speed -- 4 to 6
miles per hour -- and made noise enough to be heard at a distance
of one or two car lengths. They were unlighted and unattended, and
no person warned plaintiff of their approach.
The Act of Congress under which plaintiff seeks recovery took
possession of the field of liability of carriers by railway for
injuries sustained by their employees while engaged in interstate
commerce, and superseded state laws upon that subject.
Second
Employers' Liability Cases, 223 U. S. 1,
223 U. S. 55.
This case is governed by that Act and the principles of the common
law as applied in the courts of the United States. The plaintiff
cannot recover in the
Page 276 U. S. 169
absence of negligence on the part of defendant.
Seaboard Air
Line v. Horton, 233 U. S. 492,
233 U. S. 502.
And, except as specified in § 4 of the Act, the employee assumes
the ordinary risks of his employment, and, when obvious or fully
known and appreciated by him, the extraordinary risks and those due
to negligence of his employer and fellow employees.
Boldt v.
Pennsylvania R. Co., 245 U. S. 441,
245 U. S. 445;
Ches. & Ohio Ry. v. Nixon, 271 U.
S. 218. If, upon an examination of the record, it is
found that, as a matter of law, the evidence is not sufficient to
sustain the essential findings of fact, the judgment will be
reversed.
C. M. & St. P. Ry. Co. v. Coogan,
271 U. S. 472,
271 U. S.
474.
The court authorized the jury to find defendant guilty of
negligence if the space between the tracks was found to be so
narrow that, when track 5 was occupied, plaintiff was in danger of
being struck by cars moving on track 4. It was shown, as stated by
the Supreme Court, that the clearance between the car that
plaintiff was checking on track 5 and the moving cars on track 4
was about 2 feet and 9 inches without considering the grab-irons on
the cinder cars which projected 4 1/2 inches from each corner.
While this space was sufficient to enable plaintiff to keep out of
the way of the moving cars, the danger attending his work would
have been lessened if the distance between the tracks had been
greater. The work of checking cars in a yard at night where
switching is being done is necessarily attended by much danger. But
fault or negligence may not be inferred from the mere existence of
danger or from the fact that plaintiff was struck and injured by
the moving car. Defendant did not owe to plaintiff as high a degree
of care as that due from carriers to their passengers or others
coming on their premises for the transaction of business. The
reason for the distinction is that plaintiff's
Page 276 U. S. 170
knowledge of the situation and the dangers existing because of
the narrow space between the tracks was at least equal to that
chargeable against the defendant.
Missouri Pacific Railroad Co.
v. Aeby, 275 U. S. 426. The
rule of law which holds the employer to ordinary care to provide
his employees a reasonably safe place in which to work did not
impose upon defendant an obligation to adopt or maintain any
particular standard for the spacing or construction of its tracks
and yards.
Baltimore & Ohio R. Co. v. Groeger,
266 U. S. 521,
266 U. S. 529.
Carriers, like other employers, have much freedom of choice in
providing facilities and places for the use of their employees.
Courts will not prescribe the space to be maintained between tracks
in switching yards, nor leave such engineering questions to the
uncertain and varying opinions of juries.
Tuttle v. Detroit, G.
H. & M. R. Co., 122 U. S. 189,
122 U. S. 194;
Randall v. Baltimore & Ohio R. Co., 109 U.
S. 478,
109 U. S. 482;
Washington, etc., Railroad Co. v. McDade, 135 U.
S. 554,
135 U. S. 570.
Having regard to plaintiff's knowledge of the situation, it is
clear that the evidence, when taken most favorably to him, is not
sufficient to warrant a finding that defendant failed in any duty
owed him in respect of the space between the tracks.
Missouri
Pacific Railroad Co. v. Aeby, supra. The court erred in
submitting that question to the jury.
And the court authorized the jury to find defendant negligent in
failing to cause the engine bell to be rung and in sending the cars
along track 4 without a light and unattended. The opinion below
declares that the starting or running of the switch engine without
ringing a bell or blowing a whistle was evidence of negligence, and
that if, according to the practice, cars could be shunted
dangerously near to the place where plaintiff was working without
any warning to him or "knowledge of such custom or practice on his
part," the system of doing the work was
Page 276 U. S. 171
not reasonably safe, and plaintiff was not provided with a
reasonably safe place in which to work and did not assume the risk.
Obviously the ringing of the bell when and after the cinder cars
were uncoupled or when the engine started or while it was running
would not have been useful as a warning to plaintiff. When the cars
were detached, he was from 300 to 400 feet from the lead track and
the engine was at the other end of the string of cars. The decision
on this point is contrary to the rule followed in the federal
courts.
Aerkfetz v. Humphreys, 145 U.
S. 418, was a case presenting a situation similar to
that here involved. It is there said: (p.
145 U. S.
420):
"The ringing of bells and the sounding of whistles on trains
going and coming, and switch engines moving forwards and backwards,
would have simply tended to confusion."
And see Rosney v. Erie R. Co., 135 F. 311, 315;
Connelley v. Pennsylvania R. Co., 201 F. 54, 57. And there
is no support for the assumption that plaintiff was without
knowledge of the switching practice followed in that yard, or that
the movement in question created an unusual hazard. On the
evidence, it must be held that he knew how switching was done
there, and, in the absence of proof that he was exposed to some
unusual danger by reason of a departure from the practice generally
followed, it cannot be held that defendant was in duty bound to
give him warning. The members of the switching crew had a right to
believe that he would keep out of the way of the shunted car.
Aerkfetz v. Humphreys, supra.
In any event, plaintiff assumed the risk. He was familiar with
the yard and the width of the space between the tracks, and knew
that cars were liable to be shunted without warning to him. The
dangers were obvious, and must have been fully known and
appreciated by him.
Boldt v. Pennsylvania R. Co., supra; Ches.
& Ohio Ry.
Page 276 U. S. 172
v. Nixon, supra; Randall v. Baltimore & Ohio R. Co.,
supra; Tuttle v. Detroit, G. H. & M. R. Co., supra.
The amended petition alleged that the employees in charge of the
engine and cars
"saw, or by the exercise of ordinary care could have seen,
plaintiff between said tracks and in a position of peril and
oblivious thereof in time thereafter, by the exercise of ordinary
care, with the means and appliances at hand, to have either held
said cars stationary, or after having started said cars, stopped
them, or slackened the speed thereof in time . . . to have avoided
striking and injuring plaintiff, but that said . . . employees
failed and neglected so to do."
Defendant requested the court to charge that plaintiff was not
entitled to recover on that ground. The court refused and submitted
the question to the jury.
Defendant contends that the evidence is not sufficient to
warrant a determination of that issue in favor of the plaintiff.
Immediately prior to the switching movement in question, the engine
working on the lead was headed westerly attached to the easterly
end of the string. The crew consisted of a foreman, two switchmen
-- one in the field and the other following the engine -- the
engineer, and fireman. The plaintiff was then at the place of the
accident. There is no claim that he was not about his work in the
usual way, or that he could not have avoided the cars if he had
known they were coming. A slight movement on his part would have
been enough. When the engine pushed the string westerly along the
lead to give the cinder cars momentum, the field man was on the
south side of the lead, and turned switch 4 to shunt them to that
track. There is no evidence that he saw plaintiff or knew where he
was while the switching movement was being made. The foreman of the
crew was on the north side near the westerly end of the string of
cars. He lifted the coupling pin to detach the cinder cars and gave
signals
Page 276 U. S. 173
for the starting and stopping of the engine in order to give
them the desired impulse. He saw the lantern carried by plaintiff
on the north side of the cars on track 5, and assumed that
plaintiff was at work there. Plaintiff's son was the other
switchman. He was on the north side near the middle of the string
of cars, and received from the foreman and transmitted to the
engineer the signals for the starting and stopping of the engine.
He also saw plaintiff's lantern. Neither engineer nor fireman knew
where plaintiff was. The mere fact that the foreman and plaintiff's
son saw the lantern and knew that plaintiff was checking cars on
track 5 is not sufficient. There is nothing to sustain a finding
that plaintiff was in any danger other than such as was usually
incident to his employment or that any member of the crew knew or
had any reason to believe that he was oblivious of the situation.
Illinois Central Railroad Co. v. Ackerman, 144 F. 959,
962. In the absence of knowledge on their part that he was in a
place where he was liable to be struck and oblivious of that
danger, they were not required to vary the switching practice
customarily followed in that yard or to warn or to take other steps
to protect him. There is no evidence to sustain the allegation that
the other employees saw, or negligently failed to discover,
plaintiff in a "position of peril and oblivious thereof." There was
no foundation for a finding in favor of the plaintiff on that
issue.
Cf. Inland & Seaboard Coasting Co. v. Tolson,
139 U. S. 551,
139 U. S.
558-559;
Grand Trunk Railway Co. v. Ives,
144 U. S. 408,
144 U. S. 429;
Washington & Georgetown Rd. v. Harmon, 147 U.
S. 571,
147 U. S.
581-583;
Chunn v. City & Suburban Railway,
207 U. S. 302,
207 U. S. 309;
Denver City Tramway Co. v. Cobb, 164 F. 41, 43;
Kansas
City Southern Ry. Co. v. Ellzey, 275 U.
S. 236.
Judgment reversed.