Petition — Brooks v. Washington Terminal Co.

Supreme Court, U. a

FILED’

§ APR 12 1979

| MICHAL RODAK, JR., CLERK

IN THE ,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No W895 59

HALBERT D. BROOKS,

Petitioner,

Vv.

THE WASHINGTON TERMINAL COMPANY,

Respondeni.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

JAMES R. SCULLEN

1701 Pennsylvania Avenue, N.W.

Suite 208

Washington, D.C. 20006

(202) 298-6608

Attorney for Petitioner

sme

Washington, D.C. + THIEL PRESS + (202) 638-4521

(1)

TABLE OF CONTENTS

: Page

ELM hich ea chek Sous e bbb epee eeee ces 2

pO EE ee ee 2

es pe eS y 4: i 2

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULE OF COURT INVOLVED .......... 2, 3,4

OG TE ee 4,5,6

REASONS FOR GRANTING THE WRIT......... 6,7, 8,9

Ph. hacen es ab 6s es hence eeetses 9,10

APPENDICES:

(A) Petitioner’s Complaint for Personal Injuries

Under Federal Employers Liability Act

Filed in the United States District Court for

Ts owe ews ces ccsevoves la

i a Si de 6 we sees 2 68 0s 4a, 5a

(C) Order and Memorandum Opinion and Judg-

ment of the United States District Court

for the District of Columbia Entered on

i ee Lek wh ke bee be 8 0 6a, 7a, 8a

(D) Judgment and Opinion of the United States

Circuit Court of Appeals for the District

of Columbia Circuit Entered January 17,

TABLE OF AUTHORITIES

Cases:

Anderson v. Atchison Topeka & Santa Fe Railroad

Company, SEG UD. BEE (IGG) occ ccc cps cere cscs 7

Bailey v. Central Vermont Railway, Inc., 319 U.S. 350,

353, 354, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943)....... 6,7

Gallick v. B&O Railroad Company, 372 U.S. 108,

re ee a rie eran ee a aa 7

(it)

Cases, continued: Page

Harrison v. Missouri Pacific Railroad Company, 372

er tc ee 6,8

Jamison v, Encarnacion, 281 U.S. 642, 643 (1930)..... 6,7,8

Kernan v. American Dredging, 355 U.S. 426 (1957) ....... 7

Lavender v. Kurn, 327 U.S. 645 (1946) ............00. 8

Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140

SA pra Oa be od sw Ak nna Gara eee Sw ae es wee 6, 8

Najera v. Southern Pacific Company, 13 Cal. Rptr.

SERS Gr oe a ere 9

Rogers v. Missouri Pacific Railroad Company, 352

U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d

NEY aah oo eds Nae eS ark ie noe bo Ace 0.8 » 6,7,8

Sinkler v. Missouri Pacific Railroad Company, 356

Se a ii 5'd ako 6-0 ce Oa bob we ebb sew ee 7,9

Tennant v. Peoria & Pacific Union Railroad Com-

OG Be We ie OO REPO cg ek eee eee cewees 7

Tiller v. Atlantic Coast Line, 318 U.S. 54 (1943) ......... 7

Constitutional Provisions:

United States Constitution:

I a a cd wae ee eeee ee wee 2

Statutes:

Federal Statutes:

Federal Employers Liability Act, Section 1, et

seq. as amended, 45 U.S.C.A. Sec. 51, et seq... 1.2... 3

Rules of Court:

INS CEI 6-4-6 § S-Sia tN e 68 o.0e eee Sekt ees 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

HALBERT D. BROOKS,

Petitioner,

THE WASHINGTON TERMINAL COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Petitioner, Halbert D. Brooks, respectfully prays

that a writ of certiorari issue to the United States Court

of Appeals for the District of Columbia to review its

judgment in the above entitled case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is unreported. A copy

of the opinion appears in Appendix E of this petition.

l

2

A copy of the Judgment and Memorandum Opinion in

support thereof dated November 21, 1977, issued by the

United States District Court for the District of Columbia

and Opposition thereto is filed in Appendix C.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

Section 1254(1).

This case invokes rights claimed under a statute of the

United States known as the Federal Employers Liability

Act cited at Title 45 U.S.C. Section 1-51, et seq.

The order of the United States Court of Appeals for

the District of Columbia Circuit was entered on January

17, 1979. |

QUESTION PRESENTED

Did the trial court err when it refused to enter

$80,000.00 jury verdict in favor of petitioner, granting

respondent’s renewed motion for directed judgment and

were the actions of the Courts below consonant with the

statutory mandate enacted by the Congress of the United

States under Title 45 U.S.C. Section 51, et seg., and the

numerous cases decided to the contrary by this Court

from 1930 to the present?

CONSTITUTIONAL, STATUTORY AND

RULES PROVISIONS INVOLVED

The Seventh Amendment to the Constitution of the

United States provides in pertinent part as follows:

‘tin Suits at common law, where the value in contro-

versy shall exceed $20.00, the right of trial by jury

shall be preserved, and no fact tried by a jury,

shall be otherwise re-examined in any Court of the

United States, then according to the rules of the

common law.”

3

The applicable statutory provisions involved, herein,

are the Federal Employers Liability Act, Sec. 1, et seq.,

as amended, 45 U.S.C.A. Sec. 51, et seqg., which reads

in pertinent part as follows:

“every common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any of the States and Terri-

tories, or between the District of Columbia and

any of the States or Territories, or between the

District of Columbia or any of the States or Terri-

tories and foreign nation or nations, shall be liable

in damages to any persons suffering injury while he

is employed by such carrier in such commerce, or,

in case of the death of such employee, to his or her

personal representative, for the benefit of surviving

widow or husband and children of such employee;

and, if none, then of such employee’s parents; and,

if none, then of the next of kin dependent upon

such employee, for such injury or death resulting

in whole or in part from the negligence of any of

the officers, agents, or employees of such carrer

or by reason of any defect or insufficiency, due

to its negligence, in its cars, engines, appliances,

machinery, track, road bed, works, boats, wars, or

other equipment.

“Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance

of interstate or foreign commerce; or shall, in any

way directly or closely insubstantially, effect such

commerce as above set forth shall, for the purposes

of this chapter, be considered as being employed

by such carrier in such commerce and shall be

considered as entitled to the benefits of this

chapter.”

+

Supreme Court Rule 19 dealing with considerations

governing review on certiorari reads in pertinent part as

follows:

“1. A review on writ of certiorari is not a matter or

right, but of sound judicial discretion, and will be

granted only where there are special and important

reasons therefore. The following, while neither

controlling nor fully measuring the Court’s discre-

tion, indicate the character of reasons which will

be considered:

‘“(b). Where a Court of Appeals has rendered a

decision then ...; or has decided a federal question

in a way in conflict with applicable decisions

of this Court; or has so far departed from the

accepted and usual course of judicial proceedings,

or so far sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s

power of supervision.”

STATEMENT OF THE CASE

Petitioner, Halbert D. Brooks, age 60, was respondent

railroad’s top supervisor on the midnight trick of duty on

the 10th day of June, 1975.

Petitioner had thirty-three years railroading experience,

rising from a seat changer to head supervisor.

On June 10, 1975, about 5:45 a.m. he was viciously

assaulted by a new railroad employee, one Daryl Garnett,

age 19 years, with a railroad tool called a soft end hose.

Garnett’s immediate supervisor, James Deal, testified

the assailant had been missing from his assignments from

1:00 a.m. until the time of the assault and no action was

taken by anyone, including security, to ascertain his

whereabouts when Petitioner had to confront and dis-

cipline his subordinate for failure to perform his duties.

5

The assailant had violated a company Rule G, having

narcotics in his possession, and he was subsequently

discharged by the respondent railroad.

The respondent railroad also told Petitioner they had

no duty to protect him jrom this criminal assault under

the Federal Employers Liability Act.

The trial court, after preparing written interrogatories

to the jury, submitted the case to the jury. After four

hours deliberation, the jury returned a verdict in favor of

Petitioner in the sum of $80,000.00. The trial court

refused to enter judgment and granted respondent

railroad renewed motion for a directed judgment, stating

if the case had been in such posture, it would also have

granted a Motion N.O.V.

The United States Court of Appeals for the District of

Columbia Circuit affirmed the action of the trial court,

stating Petitioner failed to produce sufficient evidence of

“indirect” or “direct” negligence; failed to prove a “‘pripr

disregard” of the violation of company Rule G in order

to make the violation here effective; and failed to show

forseeability for the propensity for violence upon the

part of the assailant. Forseeability of danger apparently

was not enough. The jury, with reason, thought other-

wise! Neither court elected to discuss the doctrine of

a safe place to work except inferentially in Note 6 in

the Court of Appeals opinion, page 7. Neither court

discussed the breakdown in security which formed a

theory of Plaintiff’s complaint. See paragraph 10 of

Plaintiff’s complaint.

At any rate the logical inference the jury drew from

the facts stated in Note 6, page 7 of the Appellate Opin-

ion, was singularly their function, not the court’s.

Neither of the courts below concerned themselves with

the simple statutory criterion of whether the company’s

6

negligence contributed, in whole or part, to Plaintift’s

injuries,

Both courts took great pains to weave a tortuous, legal

path to circumvent that simple criterion, utilizing novel

concepts of negligence not found in the cases decided by

this Court; novel concepts of rule violations as they relate

to respondent’s culpability, and formulation of a novel

definition of forseeability also remarkable for its restric-

tiveness and dissonance from prior defintions issued by

this Court on numerous occasions.

REASONS FOR GRANTING THE WRIT

1. The decisions below raise serious questions regard-

ing the administration of justice in the Federal System

under an act entitled the Federal Employers Liability Act

and amendments thereto cited at Title 45 U.S. Code

Section 1-51, et seg. Jamison v. Encarnacion, 381 U.S.

642, 643 (1930).

2. The District and Circuit Courts for the District of

Columbia have usurped the function of the jury under

the Federal Employers Liability Act when they deprived

an injured railroad supervisor of his jury verdict of

$80,000.00. Harrison v. Missouri Pacific Railroad Com-

pany, 372 U.S. 248 (1963).

3. The decisions below recognize but refuse to apply

the doctrines enunciated by this Court in Rogers v.

Missoun Pacific Railroad Company, 352 U.S. 500, 506,

77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Bailey v.

Central Vermont Railway, Inc., 319 U.S. 350, 353, 354,

63 S.Ct. 1062, 87 L.Ed. 1444 (1943); Lillie v. Thomp-

son, 332 U.S. 459, 68 S.Ct. 140 (1947); Harrison v.

Missount Pacific Railroad Company, 372 U.S. 248 (1963).

7

4. The decisions below circumvent the Seventh

Amendment of the Constitution of the United States, the

Federal Employers Liability Act and amendments thereto

and a host of cases decided by this Court. Tiller v.

Atlantic Coast Line, 318 U.S. 54 (1943); Anderson v.

Atchison Topeka & Santa Fe Railroad Company, 333

U.S. 821 (1948); Sinkler v. Missouri Pacific Ratlroad

Company, 356 U.S. 326 (1958).

5. The decisions below ingeniously extract arbitrary

classifications of indirect and direct negligence from legal

treatises to construct legal barriers which deny relief to

injured railroad supervisors when such classifications are

mere devices to reinstate common law defenses which

have been obliterated from the act by statute and deci-

sions of this Court. Kernan v. American Dredging, 355

U.S. 426 (1957); Gallick v. B & O Railroad Company,

372 U.S. 108, 113-114 (1963); Jamison v. Encarnacion,

281 U.S. 642, 643 (1930); Tiller v. Atlantic Coast Line

Railroad Company, 318 U.S. 54 (1943).

6. The decisions below are replete with recognition of

established doctrines in Federal Employers Liability Act

cases but devoid of a desire to apply such doctrines.

They seek to obliterate the doctrines established by this

Court. Rogers v. Missouri Pacific Railroad Company,

352 U.S. 500, 506, 77 S.Ct. 448, 1 L.Ed.2d 493 (1957);

Tennant v. Peoria & Pacific Union Railroad Company,

321 U.S. 29, 35 (1944); Tiller v. Atlantic Coast Line

Railroad Company, 318 U.S. 54 (1943); Bailey v. Central

Vermont Railway, Inc., 319 U.S. 350, 353, 354, 63 S.Ct.

1062, 87 L.Ed. 1444 (1943).

7. The decisions of the court below illegally attempt

to exclude a class of railroad workers from relief under

the act, i.e., railroad supervisors assaulted by their sub-

ordinates by establishing novel standards of negligence

not found in the Federal Employers Liability Act or

amendments thereto or in cases decided by this court.

8

Railroad supervisors would never be able to demonstrate

that an assault by a subordinate was in furtherance of

the railroad’s business. Yet, the Courts below require

this burden of proof under the novel negligence concept

of indirect negligence. Harrison v. Missouri Pacific

Railroad Company, 372 U.S. 248 (1963); Lillie v.

Thompson, 332 U.S. 459, 68 S.Ct. 140 (1947); Lavender

v. Kurn, 327 U.S. 645 (1946).

8. The rationale of the courts below, in assault cases

brought under the Federal Employers Liability Act and

amendments thereto, impermissively redefine forsee-

ability for a propensity for violence contrary to the

decisions of this Court. If permitted to stand, confusion

will supplant reason in all federal circuits deciding assault

cases brought under the Federal Employers Liability Act.

Harnson v. Missount Pacific Railroad Company, 372 U.S.

248 (1963); Lillie v. Thompson, 332 U.S. 459, 68 S.Ct.

140 (1947).

9. There was ample evidence of negligence in the

record to support the jury verdict in favor of the Peti-

tioner, an assaulted railroad supervisor, who was attempt-

ing to carry out the mandate of the Federal Employers

Liability Act, i.e., protect all railroad employees and the

public when he was viciously assaulted.

Sensing a philosophical abandonment of the railroad

worker in this Court by benign neglect, the courts below

have decided to begin anew a frontal attack on doctrines

established in this Court since Jamison v. Encarnacion,

281 U.S. 642, 643 (1930); Rogers v. Missouri Pacific

Railroad Company, 352 U.S. 500, 506, 77 S.Ct. 443,

448, 1 L.Ed.2d 493 (1957).

10. The courts below hold that the burden of proof

by ratlroad supervisors assaulted by subordinate em-

ployees, through no fault of their own, and engaged in

the very act of supervision, is greater under the remedial

humanitarian Federal Employers Liability Act and

S

amendments thereto than at common law, contrary to

what this Court has reiterated since the enactment of the

act. Sinkler v. Missourt Pacific Railroad Company, 356

U.S. 326 (1958); Najera v. Southern Pacific Company.

13 Cal. Rptr. 146 (1961).

CONCLUSION

The jury’s verdict in Federal Employers Liability Act

cases, has, until now, been inviolate.

This Court has so stated time and again, and in con-

junction with the Seventh Amendment of the United

States Constitution, has provided injured railroad men,

including supervisors whose devotion to duty to the

railroad, fellow employees, and the public leave them

singularly exposed to bodily harm, intentional or other-

wise, with a humanitarian remedy.

Although there was ample evidence of negligence from

which the jury might impute negligence to the carrier,

the opinions below, sensing an abandonment of the

stewardship in these railroad cases, assert to Petitioner

that his final reward for thirty-three faithful years as a

railroad man, from seat changer to number one super-

visor, is that he has no remedy for a savage beating with

a railroad tool by his subordinate employee supplied to

him by the railroad.

The Congress of the United States and decisions of this

Court have indicated no such bizarre and inhumane result

should ensue.

10

Petitioner respectfully asserts that his petition for

certiorari should be granted and the judgments below

be summarily reversed as discordant with many prior

decisions of this Court.

Respectfully submitted,

JAMES R. SCULLEN

1701 Pennsylvania Avenue, N.W.

Suite 208

Washington, D.C. 20006

(202) 298-6608

Attorney for Petitioner

APPENDIX

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 77-0073

HALBERT D. BROOKS

408 Oglethorpe Street, N.E.

Washington, D.C. 20011

Plaintiff,

VS.

WASHINGTON TERMINAL COMPANY

Union Station

Washington, D.C.

Defendant.

COMPLAINT FOR PERSONAL INJURIES

UNDER FEDERAL EMPLOYEES LIABILITY ACT

The plaintiff, Halbert D. Brooks, a railroad worker for

thirty-eight (38) years, a resident of the District of Col-

umbia, states in support of his claim as follows:

1. This action arises under an Act of Congess, known

as the Federal Employers Liability Act, and amendments

thereto cited as Title 45, United States Code, Section

51 et sequentia.

2. The plaintiff was, at the time of the occurrence, a

railroad car foreman and night supervisor, employed by

the defendant company, engaged in interstate commerce,

and he was injured in the course and scope of his employ-

ment.

2a

3. The defendant is a Class I railroad corporation, en-

gaged in interstate commerce, incorporated under the

laws of the District of Columbia.

4. At the time and place hereinafter mentioned, the

acts of omission and commission causing injury to the

plaintiff were by the agents, servants and or employees

of the defendant, acting in the course and scope of their

employment and were due in no manner whatsoever to

any act or failure to act upon the part of the plaintiff.

5. All of the property, equipment and operations in-

volved in the occurrence were under the direct and ex-

clusive control of the defendant.

6. As a result of the accident herein referred to, the

plaintiff has been obliged to expend, in an effort to cure

himself of the pain and injuries hereinafter more particu-

larly set forth, various sums of money for medicine and

medical treatment and will be obliged to continue to

expend such sums for the remainder of his life.

7. Because of the accident herein referred to, the

plaintiff has undergone great physical pain and mental

anguish and will continue to endure same for the remain-

der of his life, to his great detriment and loss.

8. As a result of the accident herein referred to, the

plaintiff has suffered a loss and depreciation of his earn-

ing power and will continue to suffer such loss and depre-

ciation for the remainder of his life, to his great detriment

and loss.

9. About 5:45 a.m., June 10, 1975, plaintiff was

assaulted by an employee of the defendant company.

Both the plaintiff and the employee were engaged in

work for the defendant at the time of the occurrence.

Plaintiff asserts that acting as supervisor for the defend-

3a

ant, he ordered an employee, one Daryl Garnett, to stop

work and leave the premises at 5:45 a.m. between plat-

form 25 and 26 tracks, and the employee maliciously and

savagely attacked him. Plaintiff asserts such attack was

unprovoked and he was struck by the employee who was

holding a hose with a metallic end in his hand, causing

plaintiff severe and permanent injuries.

10: Plaintiff further alleges that the defendant railroad

was negligent toward him and that such negligence, in

whole or in part, contributed to his injuries in that the

defendant railroad: failed to provide him with a safe

place to work; employed a person who they knew, or

with reasonable care should have known, had dangerous

propensities.to commit illegal and dangerous acts; failed

to promulgate and enforce its safety rules; failed to pro-

vide adequate and continuous medical care which aggra-

vated his injuries; failed to provide him adequate security

to perform his supervisory duties and did in other ways

act in a grossly negligent manner towards him which will

be presented more fully on the trial of this cause.

WHEREFORE, plaintiff demands compensatory damages

against the defendant, The Washington Terminal Com-

pany, in the sum of Two Hundred Thousand Dollars.

Plaintiff demands punitive damages against the defen-

dant in the sum of Five Hundred Thousand Dollars.

JAMES R. SCULLEN

Attorney for Plaintiff

1701 Pennsylvania Ave., N.W.

#208

Washington, D.C. 20006

Plaintiff demands trial by Jury.

JAMES R. SCULLEN

s

4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 77-0073

HALBERT D. BROOKS

Plaintiff,

VS.

WASHINGTON TERMINAL COMPANY

Defendant.

VERDICT SHEET

Do you find by a fair preponderance of the evidence

the defendant, Washington Terminal Company, was

negligent in its hiring of Mr. Garnett, in failing to

maintain a reasonably safe place in which its employ-

ees worked, or in failing to warn its employees of the

alleged propensities of Mr. Garnett, that any of said

negligence caused, in whole or in part, any foresee-

able injury to the plaintiff?

Yes _X No

Do you find by a fair preponderance of the evidence

that Mr. Garnett, an employee of the defendant at

the time in question, assaulted the plaintiff while

acting in the course of the discharge of his duties and

in the furtherance of the work of his employer’s busi-

ness, and that such acts caused, in whole or in part,

any injury to the plaintiff?

Yes * No

5a

IF YOUR ANSWER TO EITHER QUESTION 1 OR 2 IS

YES, YOU MUST THEN GO ON TO ANSWER QUES-

TION 3. IF YOUR ANSWERS TO BOTH QUESTIONS

1 AND 2 ARE NO, THEN YOUR JOB IS COMPLETED

AND YOU SHOULD SO INDICATE BY PLACING AN

“Xx”? AFTER THE SENTENCE IMMEDIATELY BELOW:

We the jury find for the defendant

3. If you answered yes to either question 1 or 2, what is

the amount of damages, if any, you find to have been

caused, in whole or in part, by the defendant?

$ 80,000

/s/ Ms. Juanita Price

Jury Foreperson

Date:

6a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 77-0073

HALBERT D. BROOKS

408 Oglethorpe Street, N.E.

Washington, D.C. 20011

Plaintiff,

VS.

WASHINGTON TERMINAL COMPANY

Union Station

Washington, D.C.

Defendant.

ORDER

Upon consideration of the jury verdict rendered here-

in on October 20, 1977 (judgment thereon having not

been entered pursuant to the direction of the Court), and

upon consideration of defendant’s renewed motion for a

directed verdict, and for the entry of a judgment in its

favor and upon consideration thereof, including plain-

tiff’s opposition thereto, and in accordance with the

Memorandum Opinion issued of even date herewith, it is,

by the Court, this 21st day of November, 1977,

ORDERED, that the defendant’s renewed motion for

a directed verdict be, and the same hereby is, granted;

and it is

7a

FURTHER ORDERED, that a judgment in favor of

the defendant dismissing the complaint be, and the same

hereby is, entered; and it is

FURTHER ORDERED, that each party shall bear its

own costs of this litigation.

/s/ Charles R. Richey

United States District Judge

8a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 77-0073

HALBERT D. BROOKS

408 Oglethorpe Street, N.E.

Washington, D.C. 20011

Plaintiff,

; VS.

WASHINGTON TERMINAL COMPANY

Union Station

Washington, D.C.

Defendant.

MEMORANDUM OPINION OF UNITED STATES

DISTICT JUDGE CHARLES R. RICHEY

This case, brought under the provisions of the Fed-

eral Employers Liability Act, 45 U.S.C. § 51, et seq.,

was tried before a jury on October 19 and 20, 1977. At

the conclusion of the plaintiff’s case, and again at the

conclusion of all the evidence, the defendant moved

for a directed verdict pursuant to the provisions of Rule

50, Federal Rules of Civil Procedure, said motions being

denied by the Court, without prejudice. After instructions

and deliberations, the jury, on October 20, rendered a

verdict in favor of the plaintiff on the basis of written

interrogations in the amount of $80,000.00. Pursuant

to the provisions of Rule 58, Federal Rules of Civil

Procedure, judgment was not entered upon the verdict,

the Clerk being directed by the Court to withhold entry

of judgment until futher Order of the Court.

9a

In view of the above, and pursuant to leave granted

the defendant upon return of the verdict by the jury, the

case is now before the Court upon the defendant’s re-

newed motion for entry of a directed verdict in its

favor. The defendant has also moved that the verdict

rendered by the jury be set aside and, in the alternative,

for a new trial. For the reasons hereinafter stated, in

‘view of the fact that the Court erroneously denied,

without prejudice, the defendant’s motion for a directed

verdict at the close of the plaintiff’s case and since no

judgment has been entered, the Court finds it unneces-

sary to rule on the defendant’s motions for a judgment

notwithstanding the verdict and for a new trial, and will

direct the Clerk to enter judgment for the defendant.

I. BACKGROUND AND ESSENTIAL FACTS

Plaintiff brought this case under the Federal Employ-

ers Liability Act, 45 U.S.C. § 51,et seq., seeking damages

for injuries caused by an assault upon the plaintiff by

one Daryl Garnett, a former employee of the defendant.

The case’ proceeded to trial on October 19

and 20, 1977, before the Court sitting with a jury.

In short, the evidence indicated that the plaintiff, while

employed as a supervisor for the defendant, reprimanded

Mr. Garnett for sleeping on the job and told him to punch

his time card such that he would lose some three and one-

half hours pay. Mr. Garnett then hit the plaintiff with a

“soft-end,” an instrument used in the railroad business.

The plaintiff was treated at a nearby hospital while Mr.

Garnett was being arrested. A quantity of what appeared

to be marijuana was found on Mr. Garnett’s person. He

was subsequently fired by the defendant.

The jury then returned a verdict of $80,000.00 for

the plaintiff. This might be said to not be surprising in

10a

that the plaintiff was a good witness who aroused sym-

pathy. However, sympathetic justice does not provide the

basis for a claim of liability. Nevertheless, the juty

obviously overlooked and disregarded both the evidence

and the law here. |

The Federal Employers’ Liability Act makes a rail-

road liable in damages to a plaintiff for injuries sustained

by him while he was employed by the defendant if such

injury resulted, in whole or in part, from the negligence

of any officers, agents, or employees of the defendant.

45 U.S.C. §51.. The Act imposes liability only for negli-

gent injuries; it does not make the railroad an absolute

insurer for personal injuries suffered by its employees.

Wilkerson v. McCarthy, 336 U.S. 53 (1945).

II. MOTION FOR A DIRECTED VERDICT

Plaintiff bases his claim herein upon two theories of

liability under the Federal Employers Liability Act

(FELA). First, the plaintiff alleges that the assault upon

him was committed in the course of the discharge of Mr.

Garnett’s duties, and, in the furtherance of the work of

the defendant’s business. See Slaughter v. Atlantic Coast

Line Railroad Co., 302 F. 2d 912 (D.C . Cir.), cert.

denied, 371 U.S. 827 (1962). The second theory that the

plaintiff relies upon is that the defendant was negligent

(a) in hiring Mr. Garnett, (2) in failing to warn the plain-

tiff of Mr. Garnett’s alleged propensity to do harm, and

(3) in violating its own Rule G, which requires employees

not to possess narcotics on the defendant’s premises.

A

The assault was not committed in the course of the

discharge of Mr. Garnett’s duties nor in the further-

ance of the defendant’s business.

Even after drawing all inferences in favor of the plain-

tiff, the Court is fully convinced that no reasonable person

lla

could find for the plaintiff on the plaintiff's first theory

of liability.! The only attempt made by the plaintiff to

show that the assault was committed within the scope of

Mr. Garnett’s employment was that he assaulted the

plaintiff because plaintiff had just told him to punch his

time card early and leave the premises, and because these

events, including the assault, transpired on the defend-

ant’s premises during the time in which Mr. Garnett was

supposed to be working.

The seminal opinion dealing with an intentional tort

in a FELA case is Jamison v. Encarnacion, 281 U.S. 635

(1930). There, a foreman assaulted the plaintiff for the

purpose of “hurry[ing] him about his work.” The

Supreme Court affirmed the jury verdict holding that an

intentional tort committed in the course of the discharge

of the duties of the assaulter and in furtherance of the

work of the employers’ business was cognizable under

FELA. The facts of this case do not even approach those

in Jamison, supra. Here, Mr. Garnett assaulted the plain-

tiff not to get him to work faster nor in any was to

further the business of the defendant. In fact, the assault

had just the opposite effect. Even if it were committed

in response to a valid order by the plaintiff, it thereby

frustrated rather than furthered the defendant’s objec-

tives. The only act which Mr. Garnett could have done

which would have been in “furtherance of the work of

the employer’s business’”” was to comply with the plain-

tiff’s orders and punch his card out -- not punch out his

foreman.

I This.is the test to be applied in deciding whether a Court

should grant a directed verdict. This is a higher standard than the

test for a new trial motion which is whether the verdict is against

the weight of the evidence.

12a

This result is compelled by the Court of Appeals for

this Circuit’s decision in Euresti v. Wahsington Terminal

Co., 280 F. 2d 629 (D.C. Cir. 1960). The Court affirmed

a directed verdict for the defendant on the plaintiff’s

opening statement in a FELA action in which the plain-

tiff was allegedly assaulted by a fellow employee after the

plaintiff insisted that the other not come to work, thereby

causing him some loss of pay. Because the alleged assault

was made in the interest of the fellow employee and not

in the interest of the defendant’s business, the plaintiff

was not entitled to have the issue go to the jury. This

Court finds the Euresti case, supra, indistinguishable from

the one at bar. Here, Mr. Garnett assaulted the plaintiff

becasue the plaintiff’s order to him would have caused

him some loss of pay and the attack was prompted by

Mr. Garnett’s own desires for revenge.

Therefore, the defendant is and was entitled to a

directed verdict on the plaintiff’s first theory of liability

because the assault upon the plaintiff did not occur while

Mr. Garnett was acting within the scope of his duties and

it was not in furtherance of the employer’s business for

one of its employees to assault one of its foremen.

B

The evidence was insufficient to allow the question

of the defendant’s negligence in hiring, failing to

warn, and in violating its own Rule G to go to the

jury.

Plaintiff has failed completely in his attempt to prove

negligence on the part of the defendant employer. There

was insufficient evidence produced by the plaintiff to

show any higher standard of hiring than that used by the

defendant, or that Mr. Garnett had a propensity for vio-

lence, or that the defendant knew or should have known

7

13a

that Mr. Garnett had a propensity for violence and should

have warned the plaintiff, or that the possession of

narcotics played any part in the injury sustained by the

plaintiff. Thus, the evidence does not even permit a

reasonable inference of negligence on the part of the

defendant, and this Court should have granted the

defendant’s original motion for a directed verdict at the

close of the plaintiff’s case.

To show that the defendant was negligent in hiring

Mr. Garnett or in failing to warn the plaintiff of his

dangerous propensities, the plaintiff must show that the

defendant knew or should have known before the assault

or before Mr. Garnett was hired that he had a propensity

for violence. There was no evidence that the defendant

actually knew that Mr. Garnett had at one time been

arrested. There was also no evidence presented that there

is a standard of care used by most employers to check

out an applicant for employment that is higher than the

care used by the defendant in this case. The sole basis for

the plaintiff’s contention that the defendant should have

known of the propensities of Mr. Garnett is the mere fact

of the existence of a criminal record indicating a prior

arrest for petty larceny and possession of narcotics.”

Even if this fact could give rise to an inference that the

defendant should have known of this arrest, the record

2Plaintiff introduced evidence that Mr. Garnett was violent

when arrested after the assault and that he was found to possess

what appeared to be marijuana after the assault. This is not evi-

dence that the defendant knew or should have known of Mr. Gar-

nett’s propensities before the assault occurred. Furthermore, evi-

dence that Mr. Garnett may have been absent from work for sev-

eral hours prior to the assault is insufficient to allow an inference

that the defendant should have realized Mr. Garnett’s propensities

for violence. There are many reasons, unconnected with a propen-

sity for violence, which might explain why he was absent.

l4a

of a prior arrest (and not a conviction) should not be

used to deny an individual a job open to those without

such records. See Utz v. Cullinane, 520 F. 2d 467, 482

(D.C. Cir. 1975). Furthermore, even if the record re-

vealed a conviction, these crimes are not evidence of a

propensity for violence. Merely being a drug user or

having stolen some money does not in any way, without

more, indicate that that person has any tendencies to

cause physical harm to others. To do so would be to

engage in sheer speculation and conjecture. Thus, the

plaintiff has failed to introduce a scintilla of evidence

from which a favorable inference could be drawn that the

defendant was negligent in hiring Mr. Garnett or in failing

to warn the plaintiff of Mr. Garnett’s alleged propensities

for violence.

The claim that the defendant violated its own Rule G

is sheer nonsense. It was not established by any evidence

that Rule G imposed a duty upon the defendant and that

the violation of Rule G was causally, or in any way, re-

lated to the injury sustained by the plaintiff. Rule G

merely states that no employee shall possess any narcotics

on the defendant’s premises. While this clearly imposes a

duty upon the employees not to use drugs, it cannot be

said to impose any duty upon the defendant here which

was breached because it would be ludicrous to think that

the defendant would enact a rule that required it to

inspect every employee on every day to ascertain whether

that employee possessed narcotics. Moreover, even if

Rule G were to be construed so as to impose a duty upon

the defendant, the plaintiff has failed to show any causal

link between the violation of the Rule and the injury sus-

tained because there is not a scintilla of evidence even

suggesting that Mr. Garnett was on marijuana or had

recently smoked marijuana at the time of the assault on

15a

the plaintiff. Mere possession of marijuana after arrest

does not imply or allow us to infer, without more, that

he was under its influence at the time of the assault.

Therefore, the alleged violation of the Rule, by Mr.

Garnett’s alleged possession of marijuana, was not shown

to have in any way caused or been related to the injury

to the plaintiff. Without any causality shown, there is no

basis for liability for negligence in the alleged violation of

Rule G by the defendant.

III.

CONCLUSION

Accordingly, this Court must direct a verdict in favor

of the defendant. The plaintiff did not produce evidence

to allow even an inference that the assault occurred in the

furtherance of the defendant’s business or that the defen-

dant knew or should have known of the alleged danger-

ous propensitites of Mr. Garnett prior to the assault.

As previously indicated herein, this Court, upon further

consideration, is convinced that the defendant’s motion

for a directed verdict should have been granted at the close

of plaintiff’s case-in-brief. Nevertheless, notwithstanding

the unusual posture of this case arising out of the fact

that the Court directed the Clerk, upon receipt of the

jury’s verdict, not to enter judgment thereon,” the Court,

after careful consideration of the plaintiff’s evidence and

drawing all inferences in favor of the plaintiff, finds no

basis upon which reasonable persons could infer liability

under any of the theories advanced by the plaintiff.‘

3 see Fed. R. Civ. P. 58.

4 Assuming that this case were before the Court in a usual

posture (i.e., on a motion for a judgment notwithstanding the ver-

dict and, alternatively, on a motion for a new trial), the Court, in

viewing all the evidence in deciding the new trial motion, would

grant this motion because the verdict is certainly contrary to the

weight of the evidence.

l6a

Thus, even if judgment had been entered upon the jury’s

verdict, the Court would have been compelled to grant

the defendant’s motion for a judgment notwithstanding

the verdict; but, in view of the foregoing facts, peculiar to

this case, it is not necessary to rule on such motion or on

a motion for a new trial. This is so because the record

herein does not show even the slightest basis, or provide

an inference of liability even under the Federal Employer’s

Liability Act.

Accordingly, this is why the Court, by order of even

date herewith, will direct entry of judgment for the

defendant, with a proviso that each party shall bear its

own costs.

Charles R. Richey

United States District Judge

17a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 77-0073

HALBERT D. BROOKS,

Plaintiff,

V.

THE WASHINGTON TERMINAL COMPANY,

Defendant.

RESPONSE TO TRIAL COURT OFFER

OF GRANT FOR ADDITIONAL TIME FOR

PLAINTIFF TO SUPPLEMENT RECORD PRIOR TO

FILING PROPOSED ORDER AND MEMORANDUM

OPINION OF THE COURT

Plaintiff respectfully declines the Court’s gracious, if

somewhat belated, extention of time to file additional

argument in reference case and states in support of such

response, as follows:

1. This Court correctly denied the defendant railroad’s

requests for directed verdicts twice during the course of a

trial on the merits before a jury.

2. After long, intensive, thorough, instructions on the

law, and carefully court prepared written interrogatories

which posed the fact and legal issues involved, the jury

answered the Verdict Sheet correctly and returned a

verdict for the plaintiff in the sum of $80,000.00.

3. After the jury had departed, counsel for the defen-

dant railroad offered to renew his motion for a directed

verdict but the: Court stated he wanted such renewal in

written form and allowed the defendant from the date

18a

of Verdict, October 20, 1977, until October 26, 1977, at

the close of business, to file. |

4. The Court then allowed plaintiff from October 26,

1977, to October 28, 1977, at the close of business, to

reply. The Court expressed the hope that the defendant

would present plaintiff with a copy prior to the 26th and

such hope was expressed in vain as the defendant mailed

the copy to plaintiff's counsel which was received on

the 27th day of October, 1977, thus reducing plaintiff's

time for reply to a matter of hours.

5.The Court also expressed the desire when these

dates were established that the matter be disposed of by

November 1, 1977.

6.On November 9, 1977, at 5:00 p.m. the Court

convened the parties, and without oral argument, pre-

sented each side with a proposed unsigned Order and

memorandum opinion which granted defendant’s Motion

for Directed Verdict and stated that ‘“‘the unusual nature

of the case’’ precluded the need to rule on the Motion

NOV and for a new trial, adding in Note 4, Page 7, that

he would have granted the Motion NOV had it been

before him. (Memorandum Opinion, Page 7.)

7.The Court’s characterization of the case as un-

usual is singularly its own. Until this Court sought to

usurp the function of the jury and deny a grievously

injured railroad man under remedial legislation enacted

for his benefit, not for the benefit or misguided solicitude

of the railroads, there was nothing unusual about it.

8. Plaintiff asserts that he was willing to repose his

fate in the hands of his peers, despite fair but restrictive

rulings on the evidence from beginning to end of the trial,

which is mandated by the Federal Employers Liability

Act and a host of Supreme Court cases which have con-

strued Section 51 of the Act.

19a

9. The defendant also was willing to gamble on the

jury verdict since the pressure to settle at all levels of the

proceedings was intense and unrelenting. As the plaintiff

steadily yielded to this pressure, the defendant railroad

became proportionately implacable and adamant unless

plaintiff accepted amounts satisfactory to them and less

than the costs of preparation for trial.

10. The Court’s Memorandum Opinion states Eurestt v.

The Washington Terminal Company (1960) 108 U.S.

Appeals D.C. 81 280 F2d 629, is indistinguishable from

the instant case.

This observation is as wrong as this Court’s attempt to

describe the tool in quotes as a “soft end’’ tool when in

fact the defense counsel referred to it as “‘a nasty thing’’,

and Garnett, the assailant, was charged with assault with

a deadly weapon which was reduced by plea bargaining. -

The differences in Euresti and this case, to enumerate

only a few, are:

In Euresti:

1) The assailant was not on duty.

2) The assailant was told not to report for duty.

3) The assailant came on the premises as a

trespasser.

4) The assailant was acting on his own behalf

and was not assigned duties by the company

when the assault occurred or at any time

just prior thereto.

5) The plaintiff’s counsel and the trial judge in

Euresti had minimal knowledge about the

Federal Employers Liability Act and the

body of law that had evolved. Neither

Section 51 of the Act nor Jamison v.

20a

Encarnacion (1930) 281 U.S. 635; 74 L.Ed

1802, was even discussed.

6) The case was not tried on its merits.

7) The appeal theory was never proffered

below and the appellate court had no basis

to rule, except as it did, on such a record.

To say that the cases are indistinguishable, ignores

these record facts:

1) Unlike Euresti, the assailant was on duty at

all times from 12:00 midnight until the

time of the assault on June 10, 1975.

2) Unlike Euresti, the assailant was assigned

specific tasks which his immediate boss,

James Deal, discovered at 1:00 a.m., June

10, 1975, he did not perform.

3) Unlike Euresti, Supervisor James Deal

permitted Garnett to remain missing while

in possession of narcotic drugs which the

trial judge says was harmless possession,

(Note 2, Pg. 5), although such drugs are

labeled dangerous because of their mind

altering qualities.

James Deal had an affirmative duty to

protect all other railroad men who were

on duty at the time, including plaintiff and

the missing man, and he failed to do so. He

had an affirmative duty to warn defendant

security personnel and plaintiff and he

failed to do so.

This led to actions that, were directly re-

lated to what happened later when plaintiff

had to confront Garnett who had a ‘‘dude

bag”’ with narcotics in it on one shoulder

and a vicious work tool in the other. The

2la

testimony was that this was a_ bizarre

appearance for one allegedly working in a

dangerous railroad switching yard.

The ‘soft end’’ description of the tool

by the trial judge gives some clue that there

was, and is, an attempt to downgrade the

violence of the act perpetrated on a faith-

ful sixty year old railroad supervisor with

thirty-eight years of railroading experience,

who is asked now to spend his retirement

years with a permanent injury and pain

according to uncontradicted and unim-

peached medical testimony.

4) Unlike Euresti, the jury correctly were

asked to resolve the fact issues of negli-

-gence, evidence and damages and they

resolved these issues in plaintiff's favor

using a carefully pointed Verdict Sheet

prepared by the Court to respond to them.

Disappointed by the loss of their gamble, the defendant

railroad has successfully persuaded the trial court to do a

360° turn from a correct handling of a railroad case to

one where, if the law announced in the memorandum

opinion prevails, will permit all railroad employees to

assault one another and their supervisors with impunity

to the railroad on the gound such assault was not in

furtherance of the company’s business.

On the other hand, supervisors alone could bind the

company on the basis of Slaughter v. Atlantic Coast

Line (1962) 112 U.S. Appeals D.C. 327; 302 F2d 912.

The Law is otherwise. No such bizarre result was ex-

pressed or intended in Slaughter or in Jamison v. Encar-

nacion where this court was allegedly taught not to put

such restrictive connotations on the acts of negligence

which result in injuries to railroad employees.

22a

But Section 51 of the Act says clearly that any

employee suffering injury while he is employed by such

carrier, is entitled to damages if such injury or death

“resulting in whole or in part from the negligence of

any of the officers, agents, or employees of such carrier.”

And Jamison v. Encarnacion (1930) 281 U.S. 635 74

L.Ed 1032, says assault is gross negligence. Here the

assault was not by a “‘former employee” as the trial

court’s proposed memorandum so artfully describes him,

(See Pg. 2) but one who was on duty, caught feather-

bedding from 1:00 a.m. to 5:45 a.m., in possession of

narcotics in violation of an unenforced company rule,

and who lied when confronted by plaintiff, and stated:

‘Man when I finishes my work I goes to sleep” - comforted

no doubt by his dope.

The trial court’s insistence that this case is indistinguish-

able from Euresti, ignores the plain facts of record;

ignores the bizarre law that was provoked in Euresti; and

furnishes no basis whatever for destroying the remedial

funciton of the Federal Employers Liability Act, not to

say the health and well being a badly hurt railroad man.

11. Finally plaintiff asserted at the 5:00 p.m. Novem-

ber 9, 1977, meeting that the trial judge, to reach his con-

clusion, had to reject the whole body of railroad law

that has evolved from the original enactment of the

remedial legislation and a whole host of railroad cases

construing that “humanitarian” act.

What strength does the proposed memorandum of

law have in the light of the following pronouncements

of law in Federal Employers Liability Act cases?

Rogers v. Missouri Pacific Railroad Co., (1957) 352

U.S. 500. “The test of a jury case is simply whether

the proof justify with reason the conclusion that _.

Dict dene» ee ’

23a

employer negligence played any part, even the slight-

est, in producing the injury or death for which damages

are sought.”

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.

See also Webb v. Illinois Central Railroad Co. (1957)

352 U.S. 512.

Gallick v. B & O Railroad Co. (1963) 372 U.S. 108.

Davis v. B & O Railroad Co. (1965) 379 U.S. 671

85 S. Ct. 636.

Bailey v. Central Vermont Railroad Co. (1953) 319

U.S. 350.

“To deprive railroad workers of the benefit of a

jury trial in close or doubtful cases is to take away a

goodly portion of the relief which Congress has afford-

ed them.”

Plaintiff respectfully points out to this Court to

take a case away from a jury after it has been care-

fully, with almost surgical-like precision, presented

to them, does violence to the Act, the intent of the

Congress and to the express mandate of the Supreme

Court.

The trial court, unlike the jury, sloughed off in a

casual note (P.S. Note 2), that Garnett was missing for

several hours.

It was the missing for the several hours and the fail-

ure to perform his duties that led to the entire assault.

The crux of the matter here. And the employees of the

carrier permitted this to happen.

24a

Nothing the trial court or defense counsel can do

will erase this inescapable fact in the record. Nor can

the defendant railroad alter the fact that plaintiff was

assaulted solely ‘because he was acting in furtherance

of his employer’s business.”’ Thus making the railroad

switching yard an unsafe place to work. Furthermore,

there is substantial evidence that with ordinary diligence

the railroad could, and should, have prevented this

vicious, unprovoked assault upon an innocent employee

who was merely doing what he had always done for

thirty-eight years, protect the railroad’s property and

personnel.

How, one respectfully inquires of this Court, can it

be said that no negligence was shown upon the part of

the carrier.

To ignore this evidence, is to ignore the Supreme

Court when it said in Lavender v. Kurn (1946) 327

U.S. 653,:

“Only when there is a complete absence of probative

facts to support the conclusion reached by a jury does —

a reversible error appear.” This memorandum opinion

makes a mockery of that law and other Supreme Court

cases previously cited.

CONCLUSION

Because the proposed Order and Memorandum

Opinion denies plaintiff the relief he thought he had

obtained from a jury of his peers, plaintiff's counsel

has consulted with him and his wife, who was also a

good witness to the brutal assault upon plaintiff, since

she shared and will share his pain and grief permanent-

ly, as to the desirability of filing additional memoranda,

attempting to change this Court’s mind for a fourth

time.

25a

They believe, and counsel concurs, that such efforts

would be time consuming, do nothing but obfuscate a

clear record, and add to the costs and burdens already

imposed upon them. They ruefully note that no such

commensurate burden will be imposed on the defen-

dant railroad whose resources to say the least are

incomparably better than their own. Nevertheless,

they have instructed counsel to note an appeal forth-

with once the proposed order and supporting memoran-

dum opinion is filed.

They feel deeply aggrieved by this usurpation of the

right to a trial by jury, virtually guaranteed to them by

the remedial Federal Employers Liability Act and the

Supreme Court cases implementing that Act.

Noting that the Court describes plaintiff as a good

witness (therefore a truthful one he presumes) who

elicited sympathy, plaintiff acknowledges this obser-

vation by the learned trial judge but asserts he did

not seek sympathy before the Court. He sought simple

Justice.

Plaintiff further notes he almost obtained it and he

believes that upon review, the appellate tribunals will

restore that justice to him.

Respectfully submitted,

/s/ James R. Scullen

James R. Scullen

26a

APPENDIX D

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1025

HALBERT D. BROOKS, APPELLANT

Vv.

WASHINGTON TERMINAL COMPANY

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 77-0073)

Argued November 30, 1978

(See ae

Decided January 17, 1979

Judgment entered

this date

James R. Scullen for appellant.

Richard W. Turner, with whom Daniel V. S. McEvily

was on the brief, for appellee.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

a

27a 2

Before TAMM and ROBINSON, Circuit Judges, and

JOHN H. PRATT, United States District Judge for the

District of Columbia.*

Opinion for the court filed by Circwit Judge TAMm.

TAMM, Circuit Judge: Halbert D. Brooks appeals

from a judgment of the United States District Court

for the District of Columbia (Richey, J.) in an action

brought under the Federal Employers’ Liability Act

(F.E.L.A.), 45 U.S.C. §§ 51-60 (1970). The jury re-

turned a verdict for the plaintiff, Brooks, but the dis-

trict court refused to enter judgment thereon and granted

the renewed motion of the defendant, Washington Termi-

nal Company, for a directed verdict.' We affirm.

I

In the early morning hours of June 10, 1975, Brooks,

a railroad car foreman for the Washington Terminal!

Company, was assaulted by Darryl Garnett, an equip- '

ment service cleaner who had been employed by the de-

fendant for five months. At 11:45 p.m. on June 9,

1975, Garnett reported to Brooks for work, and Brooks

placed him under the supervision of his assistant car

foreman, James Deal, for the midnight to 8:00 a.m.

shift. Garnett subsequently failed to appear for his

1:00 a.m. meeting with Deal, and failed to perform his

duties for the remainder of that night. Deal took no

steps to locate Garnett until 5:45 a.m. when Brooks

telephoned and inquired into his whereabouts. There-

after, Brooks and Deal began looking for Garnett. They

came upon him walking along the tracks carrying a water

hose with a metal end, used in his car cleaning duties,

and a woman’s blue shoulder bag.

* Sitting by designation pursuant to 28 U.S.C. § 292(a).

1 See FED. R. Civ. P. 50, 58.

8 28a

Brooks asked Garnett where he had been, and Garnett

replied, “when I finish my work, I go to sleep.” Tran-

script at 46. Brooks commented that the company did

not pay Garnett to sleep and told him to sign out as of

4:30 a.m. and go home for the day. Garnett turned as

if to go, but spun around and hit Brooks repeatedly

with the hose he was carrying. As Garnett started down

the tracks toward his locker, he threatened to get his

gun and come back to shoot both of them.

Police employed by the defendant were called and

placed Garnett under arrest in the locker room. A search

of Garnett yielded what appeared to be marijuana. Gar-

nett was taken to the Superior Court of the District of

Columbia and charged with assault. While Garnett was

being charged, a Washington Terminal Company police-

man checked Garnett’s record and found that he pre-

viously had been arrested for petty larceny and pos-

session of drugs. Garnett was subsequently dismissed

from employment because of the assault and because

he had violated a general rule of the defendant that

prohibited possession and use of drugs by employees on

duty.

At trial, the defendant introduced evidence that it had

required Garnett, as an applicant for employment, to

obtain a “police clearance” card from the Metropolitan

Police Department of the District of Columbia. The

police department form had been returned with the nota-

tion: “No Record. Name File Search Jan. 7, 1975.

Metropolitan Police Dept. Washington, D.C.” Joint Ap-

pendix at 25.

As another part of the application process, Garnett

was required to undergo an examination by defendant’s

physician. The defendant introduced evidence that its

physician routinely checks for needle marks indicating

drug use. No evidence was introduced concerning the

particular examination of Garnett. On his employment

application, Garnett stated he had never taken drugs.

29a 4

The defendant also introduced evidence that it had

checked with Garnett’s only prior employer, the Dis-

trict of Columbia Department of Recreation, where Gar-

nett had worked as a musician in a summer program.

Garnett’s former supervisor evaluated his performance,

conduct and attendance as average, and indicated Gar-

nett had been an honest, dependable and generally de-

sirable employee.

II

Section 1 of the F.E.L.A., 45 U.S.C. § 51 (1970),

holds common carriers by railroad liable to employees

“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.” The case in the district court

proceeded on two theories of liability that have been

developed by the Supreme Court in cases involving in-

tentional assaults by fellow employees.

First, in Jamison v. Encarnacion, 281 U.S. 635 (1930),

the Court ruled that section 1 of the F.E.L.A., 45 U.S.C.

§51 (1970), applies the principle of respondeat su-

perior, that the term “negligence” in the statute includes

intentional torts, and that an assault committed by an

employee in the course of the discharge of his duties

and in furtherance of the work of the employer’s busi-

ness can serve as the basis for liability under that Act.

Id. at 689-41.2 See generally Note, Respondeat Superior

and the Intentional Tort: A Short Discourse on How

to Make Assault and Battery Part of the Job, 45 U.

2 This theory was reflected in the following special question

for the jury:

Do you find by a fair preponderance of the evidence that

-Mr. Garnett, an employee of the defendant at the time in

question, assaulted the plaintiff while acting in the course

of the discharge of his duties and in the furtherance of

the work of his employer’s business, and that such acts

caused, in whole or in part, any injury to the plaintiff?

Joint Appendix at 8.

5 30a

CINN. L. Rev. 235 (1976). Second, in Harrison v.

Missouri Pacific Railroad, 372 U.S. 248 (1963) (per

curiam), the Court upheld the “direct negligence” *

theory of liability, and ruled that a railroad is guilty

of negligence if it fails to prevent reasonably foresee-

able danger to an employee from intentional or criminal

misconduct. Jd. at 249. Significantly, the “direct negli-

gence” theory does not require proof that the intentional

tort was committed in furtherance of the employer’s

business. Slaughter v. Atlantic Coast Line Railroad, 302

F.2d 912, 916 n.7 (D.C. Cir. 1962) .*

The test whether an F.E.L.A. case should be sub-

’ mitted to the jury “is simply whether the proofs justify

with reason the conclusion that employer negligence

played any part, even the slightest, in producing the in-

jury or death for which damages are sought.” Rogers

v. Missouri Pacific Railroad, 352 U.S. 500, 506 (1957).

Thus, unless “fair-minded jurors cannot honestly differ

whether fault of the employer played any part in the

employee’s injury,” the case should be decided by the

jury. Id. at 510. Although we recognize the liberality

of this test, we agree with the district court that the

evidence produced at trial and the inferences to be drawn

therefrom, viewed in the light most favorable to the

8’ See Sowards v. Chesapeake & O. R.R., 580 F.2d 7138, 715

(4th Cir. 1978) (per curiam).

‘This theory was reflected in the following special question

for the jury:

Do you find by a fair preponderance of the evidence that

the defendant, Washington Terminal Company, was negli-

gent in its hiring of Mr. Garnett, in failing to maintain a

reasonably safe place in which its employees worked, or

in failing to warn its employees of the alleged propensi-

ties of Mr. Garnett, [and] that any of said negligence

caused, in whole or in part, any foreseeable injury to the

plaintiff?

Joint Appendix at 8.

3la 6

plaintiff, did not make out a case for the jury under

either theory of liability. See Hartel v. Long Island

Railroad, 476 F.2d 462, 464 (2d Cir.), cert. denied, 414

U.S. 980 (1973).

III

The evidence concerning the assault by Garnett on

Brooks suggests only that Garnett was motivated by

revenge to further his own personal interests. There is

no reason to believe he was acting, or supposed he was

acting, in furtherance of the defendant’s business. Under

these circumstances, the plaintiff’s case under the re-

spondeat superior theory was not one for the jury. See

Euresti v. Washington Terminal Co., 280 F.2d 629, 630

(D.C. Cir. 1960) (per curiam); see also Sowards v.

Chesapeake & Ohio Railway, 580 F.2d 713, 715 (4th

Cir. 1978).°

The doctrine of Lillie v. Thompson, 332 U.S. 459,

462 (1947) (per curiam), and Harrison v. Missouri

Pacific Railroad, 372 U.S. at 249, requires proof of

’ We are aware that questions have been raised concerning

the scope of respondeat superior under the Federal Employ-

ers’ Liability Act. See Baker v. Baltimore & O. R.R., 502 F.2d

638, 641 (6th Cir. 1974) ; Ira A. Bushey, Inc. v. United States,

398 F.2d 167, 171-72 & n.8 (2d Cir. 1968); Copeland v. St.

Louis-S.F. Ry., 291 F.2d 119, 122-24 (10th Cir. 1961) (Mur-

rah, C.J., dissenting). We need not. address these cases be-

cause the plaintiff acquiesced in the district court’s formula-

tion of the doctrine of respondeat superior. See note 2 supra;

Brief for Appellant at 38-39. On appeal, the plaintiff alleges

only that the requirement that an intentional tort be com-

mitted in furtherance of the emplcyer’s business is not a part

of the “direct negligence” test, which relies on foreseeability

of intentional conduct. Brief for Appellant at 22-23. We

agree. See text supra at 5. Although the case of Davis v.

Green, 260 U.S. 349 (1922), written by Mr. Justice Holmes,

engendered some controversy concerning this issue, we believe

Davis was based on respondeat superior rather than “direct

negligence” principles. See Atlantic Coast Line R.R. v. South-

well, 275 U.S. 64, 65 (1927) (Holmes, J.).

7 32a

reasonable foreseeability of danger from intentional or

criminal misconduct before liability is imposed on an

employer under the F.E.L.A. for its “direct negligence.”

See also Atlantic Coast Line Railroad v. Southwell, 275

U.S. 64, 65 (1927). The F.E.L.A. does not make a

railroad company an insurer of its employees’ safety.

See Inman v. Baltimore & Ohio Railroad, 361 U.S. 138,

140 (1959).

There was no evidence presented in this case from

which a jury could infer that the defendant had ignored

the consequences of a foreseeable risk of injury such as

that suffered by Brooks. Specifically, no evidence was

presented from which a reasonable person could conclude

that the terminal company knew or should have known,

when it hired Garnett or thereafter, that he was a

person with a propensity for violence. No evidence was

produced to show that the terminal company knew of

Garnett’s arrest record when it hired him, or that the

company’s procedures for screening applicants for em-

ployment were below the required standard of care. Even

if the terminal company did know of Garnett’s prior

arrests, without convictions, for petty larceny and pos-

session of drugs, it is by no means clear that such

knowledge would justify an inference of reasonable fore-

seeability of violent propensities. Moreover, it cannot

be said that Garnett’s absence from his duties during the

hours preceeding the assault foreshadowed what was to

come.°®

* We recognize that in certain circumstances a railroad com-

pany may have a duty to search promptly for an absent em-

ployee in order “to save him from his probable peril.” An-

derson v. Atchison, T. & S.F. Ry., 333 U.S. 821, 823 (1948)

(per curiam). Plaintiff argues that the assault by Garnett

would not have occurred if the assistant car foreman, Deal,

had searched for and located Garnett when he failed to appear

for the 1:00 a.m. meeting. Thus, plaintiff contends, the de-

fendant terminal company is liable for the injury resulting

33a 8

Plaintiff contends that negligence of the defendant

could be found from a failure of the company to enforce

its rule against use and possession of drugs. We cannot

agree. Before failure to enforce a rule could give rise

to liability, there must be evidence, as in the case cited

by plaintiff, of prior disregard of the rule, which would

“warrant[] a finding of the defendant’s knowledge of the

practice and of its negligence in the performance of its

duty to enforce the rule.” Descoteau v. Boston & Maine

Railroad, 101 N.H. 271, 274, 140 A.2d 579, 583 (1958).

There was no such evidence in this case.

For the preceding reasons, we conclude that the dis-

trict court did not err in directing a verdict for the

defendant.

Affirmed.

from the assault. We cannot agree. The defendant would be

liable only for reasonably foreseeable dangers created by Gar-

nett’s absence. See text infra at 5. It cannot be said that an

employee’s absence from duties creates a reasonable foresee-

ability of violent conduct by that employee.