1. In an action under the Federal Employers' Liability Act for a
death alleged to have resulted from the negligent failure of the
employer to furnish a safe place to work, the plaintiff has the
burden of proving that the accident was proximately due to the
negligence of the employer, and a verdict resting upon speculation
and conjecture cannot be sustained. P.
280 U. S.
489.
2. In an action under the Federal Employers' Liability Act, a
showing that the accident may have resulted from one of several
causes, for some of which the defendant was responsible and for
some of which it was not, is not sufficient to establish liability.
P.
280 U. S.
490.
3. Liability under the rule which requires the master to use
reasonable care to furnish a safe place to work ceases when the
servant is authoritatively notified that the place is unsafe and is
warned to avoid it. P.
280 U. S.
490.
Reversed.
Page 280 U. S. 487
Certiorari, 279 U.S. 833, to review a judgment of the Circuit
Court of Hudson County, New Jersey, against the Railroad Company in
an action under the Federal Employers' Liability Act, which was
affirmed by the Court of Errors and Appeals, by an equal division
of the judges.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is an action under the Federal Employers' Liability Act for
the death of John Ambrose, as the result of an alleged negligent
failure of the railroad company to furnish a safe place to
work.
Ambrose had been employed for many years in a grain elevator
belonging to the company and used to facilitate the shipment of
grain in interstate commerce. He worked on the "bin floor," which
lies above a large number of grain bins, and with each of which it
is connected by a circular opening, seventeen inches in diameter,
furnished with a spout to carry the grain from the floor into the
bin, and by a rectangular manhole, twenty by sixteen and
three-quarter inches in size. These openings, when not in use, are
closed with metal covers resting on flanges and sunk to a level
with the floor.
Ambrose's duties were to sweep the floor, help set the spouts,
and generally to do such floor work as his foreman might direct.
Sometimes grain became clogged so that it would not run out from
the bin, in which event one man would descend into the bin to clean
it out while another lowered and held a light in such position as
to assist the former in the performance of his work.
Page 280 U. S. 488
This work was rarely done, and only upon an order from the
foreman or superintendent.
A short time prior to the accident, with the consent of the
superintendent, a representative of a company not connected with
the railroad was permitted to make an experiment in one of the bins
for the extermination of weevil and other insects which sometimes
got into the grain. This experiment was conducted by mingling with
the grain, as it moved through the bin, a powder which generated a
poisonous gas supposed to destroy the insects. In conducting the
experiment, forty small bags containing weevil were dropped into
the grain. After the experiment, one of the bags which had failed
to come through was found lodged within the bin, but it was not
intended or thought necessary to remove it. Ambrose was present
when the foreman lowered a droplight into the bin and disclosed the
bag, and was told by the foreman to keep away from the bin as much
as possible, not to "hang around" it, that the gas was
poisonous.
The following morning, the only men at work on the floor were
the foreman, Ambrose, and another employee. Both covers were in
place, and Ambrose was engaged in sweeping the floor. The foreman
went to another part of the premises, but, about twenty minutes
later, hearing a noise "like something hitting," returned to the
floor. He then found the covers of both openings off, and an
electric droplight hanging through the spouthole into the bin.
Looking down, he saw Ambrose's body lying at the bottom. There is
no evidence to show how the covers were removed or the
circumstances under which Ambrose entered the bin and so came to
his death.
The case was tried before a state circuit court, and the jury
returned a verdict for the respondent, upon which there was a final
judgment. Upon appeal to the New Jersey Court of Errors and
Appeals, the judges were
Page 280 U. S. 489
equally divided and the judgment, because of that division, was
affirmed.
We are of opinion that there must be a reversal because the
evidence fails to establish negligence on the part of the railroad
company. That the bin was a dangerous place does not admit of
doubt. It contained a poisonous gas of the most deadly character.
But of this Ambrose was informed. Not only was there no duty on his
part to enter the bin unless ordered to do so, but he had been
specifically told of its dangerous character and warned to keep
away as much as possible.
It is said the jury could have found that a signal had been
given to get the spouts ready, to which Ambrose responded, or that
Ambrose found it necessary, within the scope of his employment
while sweeping the floor, to adjust the covers of the openings, and
in so doing was overcome by the gas and fell into the bin. But
these are mere surmises, not legitimate inferences deducible from
the proved facts. Considering the limited size of the openings, it
is beyond reasonable belief that Ambrose could have fallen through
either of them. In the absence of positive evidence to the
contrary, the more rational conclusion is that he passed through
the manhole by conscious and deliberate effort, and to that
conclusion, the fact that the covers of both openings were off,
with a droplight hanging through the smaller one, lends a
noticeable degree of plausibility. True, in the face of the warning
that the bin was dangerous and to keep away from it as much as
possible, it is hard to find any good reason for such voluntary
entrance on his part, but it is more difficult to account for the
tragedy in any other way.
In any view of the matter, the respondent (plaintiff), upon whom
lay the burden, completely failed to prove that the accident was
proximately due to the negligence of the company. It follows that
the verdict rests only
Page 280 U. S. 490
upon speculation and conjecture, and cannot be allowed to stand.
Chicago, M. & St. P. Ry. v. Coogan, 271 U.
S. 472,
271 U. S. 478,
and cases cited.
The utmost that can be said is that the accident may have
resulted from any one of several causes, for some of which the
company was responsible and for some of which it was not. This is
not enough.
See Patton v. Texas & Pacific R. Co.,
179 U. S. 658,
where, at page
179 U. S. 663,
this Court said:
"The fact of accident carries with it no presumption of
negligence on the part of the employer, and it is an affirmative
fact for the injured employee to establish that the employer has
been guilty of negligence. . . . It is not sufficient for the
employee to show that the employer may have been guilty of
negligence; the evidence must point to the fact that he was. And
where the testimony leaves the matter uncertain and shows that any
one of half a dozen things may have brought about the injury, for
some of which the employer is responsible and for some of which he
is not, it is not for the jury to guess between these half a dozen
causes and find that the negligence of the employer was the real
cause when there is no satisfactory foundation in the testimony for
that conclusion. If the employee is unable to adduce sufficient
evidence to show negligence on the part of the employer, it is only
one of the many cases in which the plaintiff fails in his
testimony, and no mere sympathy for the unfortunate victim of an
accident justifies any departure from settled rules of proof
resting upon all plaintiffs."
It is scarcely necessary to add that a recovery cannot be
predicated upon the theory that Ambrose, of his own accord, entered
the bin. Whatever previously would have been the liability of the
company, in virtue of the rule which requires the master to use
reasonable care to furnish a safe place to work, there was no
liability under that rule at the time of the accident, since,
manifestly,
Page 280 U. S. 491
the rule ceases to be operative whenever, and as long as, the
place is closed against the servant, and he is authoritatively may,
of course, abandon or suspend its use, avoid it. The master who
furnishes the place may, of course, abandon or suspend it use
whenever he discovers that it has ceased to be safe, and a servant,
so notified and warned, who ignores the notice and warning, does so
at his own risk.
Judgment reversed.