1. The Federal District Court awarded petitioner a judgment for
damages. The Court of Appeals for the Third Circuit reversed.
Petitioner moved for a rehearing en banc under 28 U.S.C. § 46(c).
There were then eight active judges on the Court of Appeals. Four
voted to grant the rehearing, two voted to deny it, two abstained,
and a rehearing was denied. Under the uniform practice of that
Court, every petition for rehearing is submitted to every active
member of the Court, a judge is not required to enter a formal vote
on the petition, and a rehearing is not granted unless a majority
of the active members of the Court vote for it.
Held: Such a procedure is clearly within the scope of
the discretion of the Court of Appeals under 28 U.S.C. § 46(c), as
interpreted in
Western Pac. R. Corp. v. Western Pac. R.
Co., 345 U. S. 247. Pp.
374 U. S. 4-5.
2. Petitioner, an employee of respondent railroad, who was paid
by it and acted solely under the supervision of its employees, sued
respondent under the Federal Employers' Liability Act to recover
damages for injuries sustained while loading mail onto a mail car
of another railroad at a station of the latter which was managed
and operated solely by respondent. The injury resulted from a
defective door on the mail car in a train of the other railroad
which had just arrived at the station. Under instructions that it
was respondent's duty to exercise ordinary care to furnish its
employees with cars on which they work equipped with reasonably
safe doors, even if the cars are owned by another railroad, the
Page 374 U. S. 2
jury awarded damages to petitioner. The District Court denied a
motion for a judgment notwithstanding the verdict and entered
judgment for petitioner.
Held: the case was submitted to the jury under proper
instructions; there was reasonable basis in the evidence for the
jury's verdict; and the judgment for petitioner should have been
sustained. Pp.
374 U. S.
5-11.
(a) On the evidence, petitioner was clearly an employee of
respondent, even under the common law loaned servant doctrine, and
it is not necessary to consider the extent to which that doctrine
applies to cases under the Federal Employers' Liability Act. Pp.
374 U. S. 5-7.
(b) Although the mail car with the defective door was on a train
of the other railroad which had just arrived at the station, it was
respondent's duty to inspect the car before permitting its
employees to work with it. Pp.
374 U. S.
7-11.
303 F.2d 596, reversed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The petitioner brought an action under the Federal Employers'
Liability Act, 45 U.S.C. §§ 51-60, in the Federal District Court
for the Western District of Pennsylvania to recover for injuries
caused by the alleged negligence of the respondent Baltimore &
Ohio Railroad (B&O) and the Pittsburgh & Lake Erie Railroad
(P&LE). At the close of the evidence, the District Court
directed a verdict in favor of the P&LE on the ground that the
evidence failed to establish that the petitioner was an employee of
that company, as required by § 1 of the Act (45 U.S.C. § 51). The
case against the B&O, however, was submitted to the jury, which
returned a verdict of $40,000 for the petitioner. The District
Court denied a
Page 374 U. S. 3
motion for judgment
n.o.v. and entered judgment as
found by the jury. On appeal, the Third Circuit Court of Appeals,
one judge dissenting, reversed, holding that the petitioner failed
to establish negligence on the part of the B&O. 303 F.2d 596. A
rehearing en banc was denied. We granted certiorari, 371 U.S.
908.
The petitioner was employed by the B&O at its Mahoningtown
station in New Castle, Pennsylvania. The railroad complex at
Mahoningtown consisted of four sets of tracks, two owned and
operated by the B&O and two by the P&LE. On the B& O
side, the B&O maintained a station and station facilities.
Although the P&LE maintained a station, it kept no employees,
all necessary services for the two stations being provided by
B&O employees. The B&O ticket agent issued tickets in the
B&O station for the P&LE trains. The petitioner provided
janitor work for both stations, and assisted the loading and
unloading of mail cars for the trains of both railroads. The
petitioner was paid by the B&O, and was under the sole
supervision of the B&O ticket agent.
On the date of the accident, October 15, 1956, the petitioner
handled the mail for the P&LE train scheduled to depart
Mahoningtown at 12:25 a.m. The petitioner loaded 20 to 25 bags of
mail on a B&O wagon at the B&O station. He crossed the
B&O and P&LE tracks to the P&LE platform and, when the
P&LE train pulled up, brought the wagon alongside the mail car
door. On this occasion, in spite of the efforts of the petitioner
and the P&LE baggageman, one Beck, the sliding door on the
P&LE car would not open more than 18 or 20 inches. According to
the petitioner, Beck commented that he had reported the defective
door to the P&LE, which had yet to fix it, and that they would
have to get the mail on and off as best they could. The petitioner,
standing on the wagon, had no difficulty throwing the smaller bags
in the restricted opening. The larger ones, however, weighing
Page 374 U. S. 4
from 80 to 100 pounds, required the petitioner "to twist
around," and "to keep pushing and forcing them" to get them in the
opening. In the process of this unusual exertion, the petitioner
felt something snap in his back. He reported the injury immediately
to the B&O ticket agent. Treatment of the injury eventually
required the removal of a ruptured intervertebral disc and resulted
in the petitioner's permanent disability. On the basis of this
evidence, the jury found for the petitioner.
Before considering the merits of the decision below, the
petitioner raises a procedural point, claiming that he was denied a
rehearing en banc in the Third Circuit Court of Appeals in
violation of his rights under 28 U.S.C. § 46(c). At the time the
petitioner filed his motion for rehearing en banc, there were eight
active judges serving on the Third Circuit. Four judges voted to
grant the rehearing, two voted to deny, and two abstained. The
rehearing was denied. The petitioner claims that, to grant a
rehearing en banc, the statute requires only a majority of those
present. The Third Circuit requires an absolute majority of the
active members of the court. Section 46(c) provides:
"Cases and controversies shall be heard and determined by a
court or division of not more than three judges, unless a hearing
or rehearing before the court in banc is ordered by a majority of
the circuit judges of the circuit who are in active service. A
court in banc shall consist of all active circuit judges of the
circuit."
The Court had occasion to consider this section at length in
Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.
S. 247. It there said:
"In our view, § 46(c) is not addressed to litigants. It is
addressed to the Court of Appeals. It is a grant of power. It vests
in the court the power to order
Page 374 U. S. 5
hearings en banc. It goes no further. It neither forbids nor
requires each active member of a Court of Appeals to entertain each
petition for a hearing or rehearing en banc. The court is left free
to devise its own administrative machinery to provide the means
whereby a majority may order such a hearing."
Id. at
345 U. S. 250.
The Court went on to say that the rights of the litigant go no
further than the right to know the administrative machinery that
will be followed and the right to suggest that the en banc
procedure be set in motion in his case. The practice of the Third
Circuit has been fully revealed by Judge Maris in Hearing And
Rehearing Cases In Banc, 14 F.R.D. 91, which was referred to with
approval by this Court in
United States v. American-Foreign
S.S. Corp., 363 U. S. 685,
363 U. S. 688,
n. 5. Although every petition for rehearing is submitted to every
member of the court, a judge is not required to enter a formal vote
on the petition. Such a procedure is clearly within the scope of
the court's discretion as we spoke of it in
Western
Pacific. For this Court to hold otherwise would involve it
unnecessarily in the internal administration of the Courts of
Appeals.
Turning to the merits, there can be no question that the
petitioner is an employee of the B&O, as required by § 1 of the
FELA. Although the B&O suggests that the petitioner may have
been the employee of the P&LE within the meaning of the common
law loaned servant doctrine,
Standard Oil Co. v. Anderson,
212 U. S. 215;
Linstead v. Chesapeake & Ohio R. Co., 276 U. S.
28,
276 U. S. 32-34,
there is no evidence in the record to support such a conclusion. In
describing the loaned servant doctrine, the Court in
Anderson stated that, when the nominal employer furnishes
a third party
"with men to do the work and places them under his exclusive
control in the performance of it, [then] those men become
pro
hac vice
Page 374 U. S. 6
the servants of him to whom they are furnished."
212 U.S. at
212 U. S. 221.
The Court concluded that, under the common law loaned servant
doctrine, immediate control and supervision is critical in
determining for whom the servants are performing services. In the
present case, the undisputed facts show that the petitioner was at
all times paid by the B&O and under the sole supervision of
B&O employees. [
Footnote 1]
The intimations of the B&O that the petitioner might have been
given directions by the P&LE baggageman is, at most, an example
of the minimum cooperation necessary to carry out a coordinated
undertaking, and, as noted in
Anderson, cannot amount to
control or supervision. 212 U.S. at
212 U. S. 226.
The whole tenor of the services the B&O provides for the
P&LE speaks of an agreement by the B&O to manage and
operate the P&LE station at Mahoningtown. On such evidence, the
petitioner is clearly an employee of the B&O even under the
common law loaned servant doctrine, and we therefore need not
consider the extent to which that doctrine
Page 374 U. S. 7
applies to cases under the FELA.
See Linstead v. Chesapeake
& Ohio R. Co., supra; compare Sinkler v. Missouri Pac. R.
Co., 356 U. S. 326,
356 U. S.
329-330.
The only remaining issue is the negligence, if any, of the
respondent B&O. The trial judge instructed the jury that
". . . a railroad is under a duty to exercise ordinary prudence,
caution and care to inspect and to furnish its employees with cars
on which they work equipped with reasonably safe doors, even though
the cars are owned by another railroad. A failure of the B&O
Railroad to do so is negligence, providing that the railroad can
foresee that one of its employees may be injured in performing his
work in connection with that car and its equipment which are not
reasonably safe."
No exception was taken to this charge. In his opinion denying
the B&O's motion for judgment
n.o.v., the trial judge
relied on a series of court of appeals decisions standing for the
more broad proposition that a railroad has the nondelegable duty to
provide its employees with a safe place to work even when they are
required to go onto the premises of a third party over which the
railroad has no control.
See Kooker v. Pittsburgh & Lake
Erie R. Co., 258 F.2d 876;
Chicago Great Western R. Co. v.
Casura, 234 F.2d 441;
Beattie v. Elgin, J. & E. R.
Co., 217 F.2d 863. These decisions are in accord with the
opinions of this Court in
Bailey v. Central Vermont R.
Co., 319 U. S. 350;
Ellis v. Union Pac. R. Co., 329 U.
S. 649;
Harris v. Pennsylvania R. Co.,
361 U. S. 15,
reversing 168 Ohio St. 582, 156 N.E.2d 822. The present
case has been argued to us on the basis of these same decisions and
the "safe place to work" doctrine. The respondent admits the
general statements of the doctrine in these cases. It bases its
defense solely on the proposition that, because the P&LE train
had just pulled into the station, the B&O
Page 374 U. S. 8
did not have sufficient opportunity to obtain actual or
constructive notice of the defective mail car door. The respondent
relies on two lower court cases holding that, where the defect in
the premises of the third party arose within minutes or hours of
the accident, there was insufficient time as a matter of law for
the railroad to be held to have notice.
Kaminski v. Chicago
River & Indiana R. Co., 200 F.2d 1;
Wetherbee v.
Elgin, J. & E. R. Co., 191 F.2d 302,
subsequent appeal
reported in 204 F.2d 755,
cert. denied, 346 U.S.
867.
Whatever the validity of these last two cases, they do not have
relevance here. We hold that the B&O had a duty to inspect
P&LE cars before permitting its employees to work with them.
The standard of care applicable to the use of cars belonging to a
foreign railroad was settled long before the accident in this case.
In
Baltimore & Potomac R. Co. v. Mackey, 157 U. S.
72, an employee of the Baltimore & Potomac was
killed when a defective brake did not hold on a freight car hauled
by the Baltimore & Potomac, but belonging to another railroad.
Relying on the language of an earlier New York decision,
Gottlieb v. New York, L.E. & W. R. Co., 100 N.Y. 462,
467, 3 N.E. 344, 345, the Court concluded that a railroad
". . . is bound to inspect foreign cars just as it would inspect
its own cars. It owes the duty of inspection as master. . . . When
cars come to it which have defects visible or discoverable by
ordinary inspection, it must either remedy such defect or refuse to
take such cars -- so much at least, is due from it to its
employees."
157 U.S. at p.
157 U. S. 90.
The Court did not have to look far for the "second reason and
public policy" behind this principle. Relying on the language of
the lower court, the Court said:
"It would be most unreasonable and cruel to declare, that, while
the faithful workman may obtain compensation
Page 374 U. S. 9
from a company for defective arrangement of its own cars, he
would be without redress against the same company if the damaged
car that occasioned the injury happened to belong to another
company."
157 U.S. at p.
157 U. S. 89.
This decision was reaffirmed and extended a short time later in
Texas & Pac. R. Co. v. Archibald, 170 U.
S. 665. In that case, the Texas & Pacific accepted a
car of the Cotton Belt Railway for loading at a cottonseed oil mill
on a spur off the Texas & Pacific track. In the process of
switching, an employee of the Texas & Pacific was seriously
injured due to a defective coupling on the foreign car. The Texas
& Pacific attempted to distinguish the
Baltimore &
Potomac case on the ground that the duty to inspect did not
apply when a railroad accepted a foreign car only for loading,
rather than for hauling over its line in one of its trains. The
Court dismissed the argument summarily:
"The argument wants foundation in reason, and is unsupported by
any authority. In reason, because, as the duty of the company to
use reasonable diligence to furnish safe appliances is ever
present, and applies to its entire business, it is beyond reason to
attempt by a purely arbitrary distinction to take a particular part
of the business of the company out of the operation of the general
rule, and thereby to exempt it, as to the business so separated,
from any obligation to observe reasonable precautions to furnish
appliances which are in good condition."
170 U.S. at p.
170 U. S. 670.
[
Footnote 2]
Page 374 U. S. 10
See generally Annotation, 41 L.R.A. 101. The rules
adopted in these two cases are unavoidably applicable to the
present case. The B&O required the petitioner to work with cars
belonging to the P&LE, taking no precautions whatsoever to
protect him from possible defects in these cars, defects for which
it would be liable should they appear in its own cars. As
Texas
& Pacific makes abundantly clear, there is no
de
minimis rule called into play on account of the brevity of the
sojourn of the P&LE train in Mahoningtown station, since the
length of the sojourn is irrelevant to the duty owed to the
employee working with the car. Nor is it an answer to claim that
the B&O lacked control or supervision over the P&LE car.
Such arguments have never supported an exception to the employer's
duty to provide a safe place to work,
Chicago Great Western R.
Co. v. Casura, supra, p. 447;
Beattie v. Elgin, J. &
E. R. Co., supra, p. 865;
Terminal R. Ass'n of St. Louis
v. Fitzjohn, 165 F.2d 473, 476-477, and have no greater
relevance here with respect to the duty to provide reasonably safe
cars,
see Annotation, 41 L.R.A. 101. The B&O may
adequately protect itself by refusing to permit its employees to
service the car. Since the instructions to the jury adequately
reflect the holdings in these cases, and since the B&O's
failure to inspect is uncontested, the jury verdict should have
been affirmed.
Although recovery in this case is supported by the common law,
it is also required by any reasonable construction of the Federal
Employers' Liability Act itself. As we stated in
Sinkler
v. Missouri Pac. R. Co., 356 U.S.
Page 374 U. S. 11
326,
356 U. S.
330:
"it was the conception of this legislation that the railroad was
a unitary enterprise, its economic resources obligated to bear the
burden of all injuries befalling those engaged in the enterprise
arising out of the fault of any other member engaged in the common
endeavor."
If recovery were denied in this case, the railroads, by the
simple expedient of doing each other's work, could tie their
employees up in legal technicalities over the proper railroad to
sue for injuries, and perhaps remove from coverage of the Act a
significant area of railroad activity. It would subject the
employee once more to the stricter negligence standards of the
common law and such debilitating doctrines as assumption of risk.
Cf. Texas & Pac. R. Co. v. Archibald, 170 U.
S. 665,
170 U. S.
673.
In our opinion, the case was submitted to the jury under proper
instructions, and there was a reasonable basis in the evidence for
the verdict which the jury returned.
Reversed.
[
Footnote 1]
The testimony of the B&O ticket agent on duty at the time of
the petitioner's injury stands undisputed in the record:
"Q. [By the Court] Did the P&LE have any boss there that
night?"
"A. No, sir, the P&LE didn't have any employees whatsoever
connected with that operation there."
"Q. Under whose supervision was Mr. Shenker?"
"A. He was under the ticket agent, Mr. Boyd."
"Q. On that turn, when he got hurt?"
"A. On that turn, he was under my supervision."
"Q. During the four months you say he worked there, did any
P&LE employee give directions or orders to the plaintiff?"
"A. No, sir."
"Q. From whom did he receive direction and orders,
instructions?"
"A. From me, or Mr. Boyd would let me know what he wanted done
and I would tell Mr. Shenker."
"Q. And you and Mr. Boyd were exclusively Baltimore & Ohio
Railroad employees?"
"A. Yes, sir."
[
Footnote 2]
The Court in
Texas & Pacific went on to hold that
the railroad will not be held to its duty to inspect where the
employee himself becomes aware of the defect, yet continues to work
with the car with knowledge of its defect. This exception to the
rule was based on the belief that the employee assumes the risk of
handling appliances which are known to be defective. 170 U.S. at
pp.
170 U. S.
672-673. This exception, of course, is no longer
relevant under the FELA, since § 4 of the Act expressly eliminates
assumption of risk as a defense to negligence on the part of the
employer. In its place, the railroad may raise contributory
negligence on the part of the employee in mitigation of damages, a
defense that was raised in this case and on which the jury was
properly charged.
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE HARLAN and MR.
JUSTICE STEWART join, dissenting.
With all deference, I must respectfully dissent. We are not here
dealing with a situation in which a lower court has so disregarded
applicable law as to require correction here. This is simply a case
in which the evidence is insufficient to sustain liability of the
respondent B&O, and in which a perhaps more substantial claim
against the P&LE was abandoned by the petitioner below. Any
hiatus in protection of the petitioner exists not because of
inadequacies in the law, but solely because of inadequacies in the
evidence.
Normally, in a case such as this, in which the defendant's own
negligence did not create the hazardous condition, actual or
constructive notice to the defendant of the injury-producing defect
is a prerequisite to negligence
Page 374 U. S. 12
and, therefore, to liability.
See, e.g., Sano v.
Pennsylvania R. Co., 282 F.2d 935, 936, 938;
Dobson v.
Grand Trunk Western R. Co., 248 F.2d 545, 548;
Atlantic
Coast Line R. Co. v. Collins, 235 F.2d 805, 808,
cert.
denied, 352 U.S. 942;
Kaminski v. Chicago River &
Indiana R. Co., 200 F.2d 1, 4.
See also Ringhiser v.
Chesapeake & O. R. Co., 354 U. S. 901;
Wetherbee v. Elgin, J. & E. R Co., 191 F.2d 302,
subsequent appeal reported in 204 F.2d 755,
cert.
denied, 346 U.S. 867. Thus, given the failure of the
petitioner to introduce evidence tending to show that the
respondent B&O knew, or, in the exercise of reasonable care,
should have known, of the defective door, the judgment entered
below in favor of the B&O should be sustained. [
Footnote 2/1]
The Court seeks to avoid the application of these ordinarily
controlling principles by invoking several cases, decided prior to
enactment of the FELA, which, it holds, require that, in order to
discharge its duty "to use reasonable care in furnishing [the
petitioner] with a safe place to work,"
Bailey v. Central
Vermont R. Co., 319 U. S. 350,
319 U. S. 352,
[
Footnote 2/2] the B&O must
inspect the P&LE cars before B&O employees are allowed or
directed to work on them. Even accepting, arguendo, the general
applicability here of the principle imposing on the B&O the
duty to inspect the cars which it services for the P&LE, the
result reached by the Court does not follow. Such a duty may exist,
to be sure, but the obligation
Page 374 U. S. 13
can be no more than to conduct reasonable, nonnegligent
inspections, and the liability which would accrue from breach of
such a duty would be responsibility for damages occurring as a
result of the negligent performance or the nonperformance of that
duty. In a meaningful sense, then, imposition of a duty to inspect
is no more than a specific application of the concept of
constructive knowledge, since it is implicit in the principle that
one is chargeable with knowledge of that which, in the exercise of
reasonable care, he should have known. Here, that would mean that,
in the exercise of reasonable care, the B&O should have
inspected the P&LE cars, and is chargeable with knowledge of
that which a reasonable inspection would have shown.
The Court, however, says merely that the B&O had a duty to
inspect, and that, having failed to inspect, it is liable to the
petitioner for the defect which apparently caused his injury. I
find this reasoning unconvincing.
While the Court declares that it is undisputed that the B&O
did not inspect, there is simply no evidence in the record with
regard to inspection. Moreover, even if an inference of failure to
inspect were supportable, there is no basis for assuming, as the
Court does and must do to sustain its result, that a reasonable,
nonnegligent inspection procedure would, in fact, have disclosed
the defect which is the basis of the petitioner's claim. Even when
there does exist a duty of inspection, the mere existence of a
defect does not itself create liability; it must also be shown that
reasonable, nonnegligent inspection procedures would have disclosed
the defect. [
Footnote 2/3]
Page 374 U. S. 14
Evidence of this liability-producing factor was not introduced
by the petitioner. The record is devoid of evidence as to the
length of time the defect existed prior to the petitioner's injury,
[
Footnote 2/4] and as to whether,
even under an extremely careful and nonnegligent inspection
procedure, the defect would have been discovered prior to the time
of petitioner's injury.
Under the rationale and result of this case, a railroad would be
liable for a defect which first appeared immediately prior to the
injury for which recovery is sought and which even the most
scrupulous kind of inspection procedure could neither have avoided
nor detected. What the Court appears to have done is to create not
simply a duty of inspection, but an absolute duty of discovery of
all defects; in short, it has made the B&O the insurer of the
condition of all premises and equipment, whether its own or others,
upon which its employees may work. This is the wholly salutary
principle of compensation for industrial injury incorporated by
workmen's
Page 374 U. S. 15
compensation statutes, but it is not the one created by the
FELA, which premises liability upon negligence of the employing
railroad. It is my view that, as a matter of policy, employees such
as the petitioner, who are injured in the course of their
employment, should be entitled to prompt and adequate compensation
regardless of the employer's negligence and free from traditional
common law rules limiting recovery. But Congress has elected a
different test of liability which, until changed, courts are
obligated to apply.
[
Footnote 2/1]
The petitioner does not here argue that notice of the defect to
the P&LE was also sufficient notice to respondent B&O.
[
Footnote 2/2]
Although language in its opinion suggests the contrary,
see pp.
374 U. S. 7,
374 U. S. 10,
ante, I do not understand the Court today to be directly
declaring an absolute duty to provide a safe place to work without
regard to negligence, since the very cases cited by the Court
indicate that the duty is to exercise reasonable care with respect
thereto. Instead, the Court ignores the statutory concept of
negligence in setting out the duty of inspection it imposes, a
result which, for the reasons stated
infra, is erroneous
and violates the clear language of the governing statute.
[
Footnote 2/3]
This, in fact, is the apparent rule of the very cases relied
upon by the Court to subject the B&O to liability here. In
Baltimore & Potomac R. Co. v. Mackey, 157 U. S.
72, cited by the majority at p.
374 U. S. 8,
ante, the Court based liability on the operative
"principle that a railroad company is under a legal duty not to
expose its employees to dangers arising from such defects in
foreign cars
as may be discovered by reasonable inspection
before such cars are admitted into its train."
157 U.S. at
157 U. S. 91
(emphasis supplied). The second case upon which the majority bases
its result here,
see pp.
374 U. S. 8-9,
ante, simply applies this same principle to a somewhat
different set of facts, again declaring liability for
injury-producing defects "
discoverable by proper
inspection."
Texas & Pac. R. Co. v. Archibald,
170 U. S. 665,
170 U. S. 672
(emphasis supplied). The nature and timing of the required
inspection -- but probably not, as the Court here declares, the
duty of inspection itself -- presumably depend, as a function of
its reasonableness, on a number of factors, including the duration
of the time the car is available to the defendant for inspection
and the manner in which it is received. In both of the cited cases,
the "foreign" car was in the possession and on the tracks of the
named defendant upon which liability was imposed.
[
Footnote 2/4]
The statement attributed to the P&LE baggageman by the
petitioner that the defective door had been reported to the
P&LE does not, of course, shed any light on the length of time
the defect had continued to exist. The report may well have been
made only shortly before the petitioner was injured.