Petition for Writ of Certiorari — Bencel v. Frost

LISKARY +

UNITED STATES

_ October Term, 1965.

JOHN F. DAVIS, CLERK

= O68 eee ;

“

THORNTON R. “AMBOLD, .

| * » Petitioner, —

Vv.

SEABOARD AIR LINE RAILROAD COMPANY,

Leeman

_ PETITION FOR WRIT OF CERTIORARI ees

TO THE UNITED STATES COURT OF APPEALS. |

FOR THE FOURTH CIRCUIT :

" Fine, Fine, Lecum, Scuwan & FINE

720 Law Building.

Norfolk, Virginia

METZENBAUM, GAINES, SCHWARTZ,

KRUPANSKY, FINLEY & STERN

700 Union Commerce Building

Cleveland, Ohio

Attorneys for Petitioner

See

Des

ein Sat ie i ani RONS Ene RI

a

; 8

INDEX

| | Page ©

Opinions Below Scieaoee sense cetiote Peek ORT OE ea e

a coe “3

Questions Prestaited . vee scl caadcicgheseipacedtntn 2

Statutes lavelvell eRe Sere PRE Sheer ipaisionnsininhca 2

NII iccniopietcibasiaibncrsaticchuieacantsnnceigabsceceneunieicbanabieieneacten 2

_. Reasons for Granting the Writ .......... : sudden 3

Conclusion’ r shanties is oni 13

CE, “RECREATES MORMON IEN CCR. Se

“TABLE OF CITATIONS ~~

Cases

Bailey v. Central Vermont Railroad Cults, 319 U. S.

- 350, 87 L ed 1444, 63S Ct 1062 (1953) ....... aleiaeeee. # 1

Basham v. Pennsylvania R. Co., 372 US. 699, 10 Led*

2d 80, 83 S Ct 965 (1963) saneaanlne Pisrsr ba he SUTTONS Wr oO 3

_ Davis v. Baltimore &O.R.Co., U.S. ,13Led _

MIE BSG AMS) 8

phi see rieeNpuiiddings iin ani uacshieiniadniige shakes iio te

ce | ee ? Page’ |

Dennis v. Denver & Rio Grande’ Western RCo, 75

/ U.S. 208, 11 L ed 2d 256, 84 S £t.291 (1963) ........ 3

a ) Gallick v. Baltimore and Ohio’ Railroad Company, ae).

U.S: 108, 9 L ed 2d 618, 83 S ct 659 (1963) .. SEEMS

Harrison v. Missouri Pacific Railroad Co.,'372 U.S.

“248, 9 L ed 2d 711, 83 S Ct 690 (1963) a :. Oe

Rogers v. Sineoat Pacific Railroad Co., 352 US. 500, |

510, A. L ed 2a. 493, 75S Ct, A43 (1957) .. alclebibiiaicseed 3

Se v. Pennsylvania R, Go., 350 U.S. 523, 100 Led- *

668, 76 S Ct. 608 (1957) Bon eee : io oS

» Wilkerson v. McCarthy, 336 U. S. 53, 69 S Ct. 413,93 -

L. ed 497 ;, 1959), Si sack denaacaientuinlenteiaiteel Seto geypncinnneenndie 4

SNe ‘ INDEX TO APPENDIX

| Apperidix A

Opinizn of the United States Court of Appeals for .

, _ the Fourth RINNE it Siasidscunidpevansiiakttcespcihatiereibiaserenioo “15

Appeiix B | |

_ Judgment of the 2 United. States Court of Appeal for. |

. the Fourth Circuit sks dsbekscaads sssessseseneiaseesnssusinecesneenses 26

Apt ic

- Federal Employers Liability Act, 45 U.S.C.A. §51 .... 28

IN THE SUPREME COURT OF THE.

Bee ate a8 ‘ UNITED. STATES

“October Term, 1965. :

No. ST

‘

er

THORTON R. AMBOLD,

Petitioner,

ee ce

SEABOARD AIR LINE RAILROAD COMPANY,

Respondent. 7

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT =o

Petitioner, Thorton R. Antbold, ‘prays that a writ of .

certiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit. —

<&

M eS Whether the jury froan the evidence could determine -

~ that the Railroad was negligent in part iri failing to provide

a reasonably safe place in which to work, and whether the

Trial Court erred in entering judgment for the Railroad

notwithstanding the verdict of the jury for the plaintiff ?

OPINIONS BELOW

The opinion of the United States District Court for the

t Eas ern District of Virginia, Richmond, Virginia, entered :

December 16, 1964, is not officially reported. The opinion

of the United States Court of Appeals for the Fourth Cir-

cuit, entered Aprif'29, 1965, is not ames reported.

Ty v

°

‘ | "JURISDICTION cee

q

The chilies of the United States Court of pero for

ere

the Fourth Circuit was entered* April 29, 1965. The juris-.

dictior® of the Court is invoked under 28 United States

‘Cait 128209). | cet Te A

"QUESTIONS: PRESENTED ° .

eas STATUTES INVOLVED

, The statute snvitved | is e cbalit nee Liability

Act, 45.U.S. C. A. 51.

oo! a STATEMENT

@

- On October 15,.1964, a jury in the United States Dis-

‘trict Court for the Eastern District of Virginia, Richmond

¢

¢

#-

($12, 875 00) against siipedles in an action arising under

the Federal Employers’ Liability Act; 45 U.S.C.A. 51. On

December 16,- 1964, the Trial Judge filed a written memo- |

randum granting judgment to thé Railroad notwithstanding

the verdict on the ground that negligence had not been

proven. ;

- ”\ On April 29, 1965, ii ctueucans poy the United

_ States Court of Appeals for the. Fourth Circuit affirmed

ae |

\V

the judgment. Circuit Court Judge Bell dissented.

REASONS FOR GRANTING THE WRIT

_ The decision of the United States en of Appeals for

the Fourth Circuit is squarely in conflict with this Court’s

decisions in Rogers v. Missouri Pacific Railroad Co., 352

U.S.500, 510, 1 Led 2d 493, 77 S Ct. 443 (1957); W ilker-

son V. McCarthy, 336 U.S. . 53, 69 S Ct. 413, 93 L ed 497,

(1959); Schule v. Pennsylvania R. Co., 350 U.S. 523,

100 L ed 668, 76 S Ct. 608 (1957) ; Gallick v. Baltimore

. and Ohio Railroad Company, 372 U.S. 108, 9 L ed 2d 618,

83 S Ct 659 (1963) ; Harrison v. Missouri Pacific Railroad

Co., 372 U.S. 248, 9 L ed 2d 711, 83.S Ct 690 (1963) ;

Bailey v. Central Vermont Railroad Company, 319 U.S.

350, 87 L ed’ 1444, 63 S Ct 1062 (1953) ; Basham v. Penn-

sylvania R. Co., 372 U.S. 699, 10 L ed 2d 80, 83 S Ct 965

(1963) ; Dennis v. Denver & Rio Grande. Western R. Co.,

375 U.S. 208, 11 L ed 256, 84 S Ct 291 (1963); Davis v.

Baltimore & O. R. Co., U.S. _. 13 L ed 2d 594, 85

S Ct (1965). ve) .

The United States Court of Appeals for the Fourth Cir-

cuit did not construe the evidence most strongly in favor of

appellant, failed to draw all permissible inferences from _

the evidence presented, and failed to conclude that reason-.

_ able meni might draw different conclusions as to whether the

evidence established negligence.

' Ambold on April 8, 1961, was employed by the Railroad

at the Hermitage Diesel Shop at Richmond, Virginia, as a

machinist (Tr. 4). At that time, he was sixty (60) years

old, had worked nineteen (19) years, and was earning One

Hundred Nine and 30/100 ($109.30) Dollars per week

(Tr. 4). His duty was to check air brakes on the diesels,

both passenger and freight (Tr. 5). Between 11:30 a.m.

_ and 11:45 a.m., he boarded a freight diesel from the shop

platform for the purpose of carrying out his duties (Tr. 5).

_ The shop platform is made out of wood, whereas the plat-

form on the diesel is made out of iron (Tr. 5). Immediately

below the wooden shop platform and below the diesel unit

is a-concrete floor, called-the shop floor, which is about

seven (7) feet below the diesel platform (Tr. 5, 6). |

The freight diesel consisted of four or five units coupled —

. with each other and were stationary at the shop. (Tr. 5).

Unlike passenger diesels, the freight diesel has a pathway

called a runnirig board between the furthermost, or exterior,

edge of the diesel, and the hood or cab of the diesel (Tr. 8).

On the outside of the running board of. the freight diesel

is a handrail rising about thirty-eight~(38) inches above

the running board (Tr. 48). The platform of the diesel and

the shop platform are about the same elevation (Tr. 48).

' Leading down from the east side of the freight diesel

platform, from which Ambold fell, are three (3) steps, two

\

(2) feet wide and fourteen (14) inches each (Tr. 48).

These steps are beneath the level of the shop platform ‘and

will not ‘permit a machinist to bridge the space from the

diesel platform-to the shop platform, which, according to a ©

machinist named L: A. Ellis, spaced. a distance of thirty-one

(31) inches to thirty-five (35) inches-(Tr. 7). There is a

‘~” distance of about eleven (11) inches separating the edge of

the wooden shop platform from the handrail consisting of

vertical stanchions on the outside of the Tunning board of

the freight diesel (Tr. 8).

The diesel units which were coupled to each other con-

tained a drop step located between two diesel units per-

mitting a machinist to walk from one unit to another (Tr.

- 9). However, there is no drop step permitting a machinist

to walk from the diesel ws to the shop —— (Tr.

8).

- Ambold had gone aboard freight diesel ‘unit’ 1922 f02 a

the purpose of checking the air compressor, which was

‘located in the hood of the diesel (Tr. 9). After completing

his inspection, he attempted to step from the platform of ©

the freight diesel to the shop platform, a distance of thirty- -

one (31:) to thirty-five (35) inches, failed to negotiate the

distance and fell to the concrete shop floor below, where he _

suffered severe, painful and permanent injuries-(Tr. 10). _

On passenger diesels the hood or cab of the diesel fits

flush on the outside of the diesel (Tr. 16). Thus, a machinist |

has’ to step only about ten (10) inches to reach the shop

' platform from a passenger diesel (Tr. 17).

L. A. Ellis, whe had ‘worked as a machinist for the Rail: -

‘road since. 1945, had also worked in the Railroad’s diesel

shops in Hamlet, North Carolina, and Jacksonville,. Florida

6

(Tr. 69). According to Mr, Ellis, the procedure for

-_ machinists when stepping off a freight diesel onto the shop

platform and vice versa, differed in the Richmond, Virginia,

and Jacksonville, Florida, shops. At the Railroad’s Rich-

mond, Virginia, shop, the normal manner is for the machin-

ist to step from the diesel platform to the shop platform

(Tr. 69). At Richmond, machinists do not step from the

running board of the freight diesel onto the shop platform,

' bécause they would have to,duck down to go underneath the

handrail, and it would be awkward for machinists to step.

off the freight diesel by way of the handrail (Tr. 69, 70).

However, at the Jacksonville, Florida, shop of the Rail-

‘road, machinists had been instructed never to step from the

shop’ platform to the diesel platform, because it was too

much_of:a step (Tr. 75, 87). At the Jacksonville, Florida,

shop, the Railroad furnishéd a platform, which was made

out of corrugated iron, about four (4) feet long. and thirty-

___ four (34) inches wide, which was placed under the handrail

from the shop platform (Tr. 73).

The distance at the Jacksonville ee tian viii shop plat-

form fo the freight diesel is about six (6) inches wider than

the distance at Richmond (Tr. 90). Mr. Ellis estimated

that the distance from the shop platform to the handrail of

the freight diesel at the Richmond shop is about ten (10)

inches coe: 72).

Mr.. Ellis estimated that a machinist, at the Richmond

shop actually has to step about forty (40) irfches to clear

the distance from the diesel platform to the shop platform,

as the right foot of a machinist would have to land on the

shop platform about four (4) or five (5) inches in order to

stand (Tr. 86). . 1 |

=

>

_ Asan engi witness, Mr. Ellis stated that if a machinist |

is not extra cautious in stepping from the diesel platform

to the shop platform, he will. slip and fall (Tr. 89), to-wit:

“Q. I’m asking you if, in your opinion, you think |

it is hazardous in stepping the 40 inches that you say ~

you have to step.

' “A, That’s right. But pone to step, if you’ re extra

cautious in stepping, you may be able to hold your

equilibrium, But if you’re not, you'll slip. |

~ “Q. In other words, if you are extra cautious?

“A. Yes, that’s right.

;“Q. But if you are not extra cautious, what?

“A. You will slip down, you will fall down there.

““Q. All right, Now, in your experience at the Rich- oe

as _miond shop, have-your- foremen_or_anybody else: onthe # # ~

railroad ever afforded you this platform that rae use

at the Jacksonville, Florida, —

FAR, Mo, off.” tiie,

>

©

‘Mr. Ellis testified that. diesels remain at the Richmond

shop for repairs up to eight (8) hours (Tr: 101). Although

- the Railroad’s witness, Lyman Earl Jarratt, testified that

the machinists at. the Richmond shop can either step from

the running board to the shop platform, or from the diesel

platform to the shop platform (Tr. 132), Mr. Ellis,contra-

dicted this statement by-testifying that machinists at the

- Richmond shop do not step from the running board to the

shop platform (Tr. 101).

Mr. Ellis stated that the windows on 5 thie west side of the

wall of the diesel shop at Richmond are dirty at times and_

do not stay clean all thie time (Tr. 96). «

Mr. Ellis had been a safety first employee at the Norfolk

Naval Ship Yard, in Portsmouth, Virginia, before working .

| for the Railroad (Tr. 85). After Ambold fell, Mr. Ellis

took his place in performing this same type of work (Tr.

Zs 86). The work that he did at Jacksonville was what he

called “dead” work, but he also performed the same type

of ‘work at the Richmond diesel shop (Tr. 91, 95). He

checked air brakes at the Jacksonville shop, and it was

“*not necessary for- him to carry tools at all times at the

- Jacksonville shop, nor was it necessary for machinists at

Jacksonville to use the portable platform,. which weighed

about forty (40) or. ‘fifty (50) pounds (Tr. 75), to move

parts out of the diesel onto the shop — (Tr. 92).

- Ambold estimated that each week isslciie he fell-he took

' between fifty (50) and seventy-five (75) steps in his duties,

going to and from the shop platform and the diesel platform

of the freight diesel (Tr. 29). Both Ambold and Ellis, prior

~ to the fall, had-slipped in stepping off the diesel platform to

the shop platform, but had not fallen all the way to the shop

floor (Tr. 30, 77). The Railroad at its Richmond shop had

never instructed Ambold or Ellis in the manner to step off |

the freight diesel onto the shop platform (Tr. 31, 75): At

the time Ambold fell; he had stepped from the-diesel plat-

form to the shop platform in the usual and customary ~

manner (Tr. 12).

The three photographs, siete as Plaintiff’s Exhibits

1, 2; and 3 and reproduced in Appellant’s Appendix, rep-

resent the actual freight diesel in the approximate position -

it was standing at the time Ambold fell (Tr. 7). These

photographs clearly show the freight diesel, the diesel plat- .”

form, the distance separating the diesel platform from the

Ee is

9 | . ee” Be °

shop: platform, the three steps saith towards the shop floor

‘from the freight diesel, ~ concrete me floor, and the »

wooden platform. * ost take P

Ambold corroborated Mr. Ellis that the Railroad had

never furnished him, or any other machinist, any form of

a platform, or catwalk, leading from the shop. platform :

onto the freight diesel, such as the Railroad furnished its

machinists at ‘its Jacksonvil lle shop (Tr. 15, 89). |

ee

“The following evidence was sufficient for the jury to

“conclude that the Railroad was negligent in part i in failing to

provide a safe place to work. } |

° Cc} : © ei

1. Machinists at the Richmond shop usually and custom-

arily had to-step from the diesel platform of the freight °

diesel onto the shop platform and vice versa, a distance of

thirty-one (31) to thirty-five (35) inches, at-least fifty =

to seventy-five (75) times a week. 7

© 2. The Railroad at the Richmond shop had not cinstrwed

its machinists to use the running board of the freight diesel

to step onto the shop platform and vice versa.

+ 3. The Railroad at.its Richmond shop did not furnish its

machinists a portable platform, or catwalk, to enable them

to go to and from the diesel and the = platform.

4, A ssiailicnias had to step only. shia ten’ (10) inches |

from a passenger diesel onto the shop platform, whereas

he had to step thirty-one (31) to thirty-five (35) inches,

- plus the length of his two feet, or about forty (40) inches

to bridge the gap from the diesel platform to the shop plat-

form and vice. versa, at the Richmond shop.

ty .

os

5. Atits Jashacmville shop, the Railroad had forbidden its

machinists to step from the diesel platform to the shop

platform, because it was too long a step. The distance was

’ about six (6) inches more at ee Science shop than at

; the Richmond ep. Po “0

6. The Railroad at. its Jacksonville op: furnished its

machinists a portable platform, or catwalk, reaching from

the shop platform underneath the handrail of the freight

diesel to permit machinists to go to.and from.

7. The expert witness, Ellis, testified that if a machinist .

is not extra cautious at the Richmond shop in stepping

from,the diesel platform to the _ platform, he will slip

1 is fall. Siete ‘

8. Ambold at the time ot-the fall was sixty naeed years

~ old.

9. The thity-cight (38) inch ‘high aiicivail on the out-

side of the running board of the freight diesel prevented .-

Ambold from going on and off the freight diesel.

10. The Railroad furnished Ambold and other machinists

a drop step, or a hinge gate, to go from one diesel unit to

~. another, but furnished no. such appliance to go from the

. diesel to the shop. platform. . :

11. The Railroad had placed a conicrete shop floor seven

(7) feet below. the level of the diesel platform, and knew

that the three (3) steps leading down from the diesel

ee platform cannot be used by machinists to step onto the shop

@

—— being below the level thereof.

?

oe

il

12. That a sixty-yeat old man is not as agile as a younger |

- man, and-that it is foreseeable by the Railroad that stich a

man, who has to step acrdss a wide distance fifty. (50) to

seventy-five.(75) times a week, would not make it and will

fall to the shop floor below the diesel platform.

4 The Ratiened itself constructed its shop -slatfoes at °°

its Richmond shop, owned, ordered and- operated the freight

diesel from which Ambold fell, and knew that its machinists

there had to step such a wide distance to get to and from the

shop platform.

The memorandum opinion of the Trial Jadea and the

majority opinion of the United States Court of Appeals for

the Fourth. Circuit disclosed that both Courts failed to re- .

view the evidence in the light most favorable to appellant.

Both opinions stress that Ellis testified that a step from the

diesel platform in Richmorid would not be hazardous if ~

lighting conditions were satisfactory, and the light was

| satisfactory. The opinions omit the testimony wherein Ellis

testified that if a machinist is not extra cautious in stepping

from the. diesel platform to the shop canta, he will slip

~ and fall (Tr. 89).

The opinions siiabits to differentiate the work at the

Jacksonville and Richmond shops by stating that work at

the Jacksonville shop requires twenty-four (24) hours or

more, whereas only minor repairs requiring not more than

eight (8) hours work are done at the Richmond shop. In

Bailey v. Central Vermont Railroad: Company, 319 U.S.

350, 87 L ed 1444, 63S Ct 1062. (1953), the Court held

- that the railroad’s duty to furnish a safe place to work is a

continuing one, and the railroad is not relieved from liability —

by the fact that employees’ work at the place in question

_ is infrequent or fleeting.

2

°

The opinioris state that hase equipment was ‘isidabiated

" over a space about forty (40) inches wide at the Jacksonville :

shop, whereas machinists at Richmond, while empty-handed,

were required to step over a space thirty-two (32) inches

. wide, with the option of going over or under .a rail thirty-

eight (38) inches high and stepping over a space eleven:

(11) inches wide. Again the opinions failed to consider in

the light most favorable to Ambold the testimony of Ellis

that machinists at Richmond always had to step'from the

diesel platform to the shop platform, a distance of thirty-

one (31) to thirty-five (35) inches (Tr.. 69, 70, 101).

Furthermore, the court did not take into coinBideraticn Mr.

_ Ellis’ testimony that machinists at the Jacksonvillé shop did

not always carry tools and did not always transfer equip-

ment on the portalte platform (Tr. 91, 92).

«The opinions mention that the area was weil Hehted by a

skylight overhead. Mr. Ellis testified that the windows on

the west side of the wall of the Richmond diesel shop were”

dirty at times and did not stay clean all the time (Tr. 96).

The evidence did not show whether the windows were or ©

were not clean at the time of the accident. Ambold testified

that there were skylight windows, but did not testify as to

whether they were dirty or clean (Tr. 36). The Railroad’s

” witness, Jarratt,.testified that lighting conditions were good, _

the door of the shop being open, there being a skylight, but

again, he did not testify.as to whether the skylight was clean

or dirty (Tr. 131).

As the disseriting opinion of Judge Bell saad out, to

step across 4 distance of thirty-five inches (35”), with

knowledge that if the step is not long enough you will fall .-

seven (7) feet to the concrete floor below, is in itself evi-

dence of negligence sufficient to justify a jury verdict.

—— me

13, ei a . eee

CONCLUSION

-To protect the integrity of the many decisions of this

Court that the right to trial by jury is part and parcel of the

rethedy afforded railroad workers under the Federal Em-

. ployers’ Liability Act, the whee for a writ of certiorari.

should be cee |

‘Respectfully submitted,

_ THORNTON R. AMBOLD

By Howarp I. LEcum

Of Conse

FINE, FINE, i seoste ScHWAN & —_—

720 Law Building . oan

Norfolk, Virginia oe, 7. bag

METZENBAUM, GAINES, Scuwantz,

KRuPANSKY, FINLEY & STERN ©

700 Union Commerce Building _ ;

‘Cleveland, ae eee ey te, Ngee

At ae for Petitioner :

o

_ APPENDIX A

Pea OPINION OF |

_ UNITED STATES COURT OF APPEALS |

'- . FOR THE FOURTH CIRCUIT.

oC

~ No. 9838.

THORN TON R. AMBOLD,

"Appellant,

versus

SEABOARD AIR TINE RAILROAD COMPANY,

Appellee. |

6 | i

APPEAL FROM THE Unite States District CourRT FOR

THE EASTERN DISTRICT OF VIRGINIA, AT RICHMOND.

STERLING Hutcueson, District Jupce.

(Argued April 7,1965. Decided April 29, 1965.)

. Q e

Before HaynswortH, Chief Judge, BELL, Circuit Judge,

P and STANLEY, District Judge. .

™ : «

16

_ Howard I. Legum (Fine, Fine, Legum, Schwan & Fine on

brief) for Appellant, and Lewis T. Booker (Eppa Hun-

ton, IV, and Huriton, Williams, Gay, Powell & Gibson

on.brief) for Appellee. - ~

Epwin M. Stan ey, District Judge:

The plaintiff, Thorton. R. Ambold,.brought this action

under the Federal Employers Liability Act, 45 U.S.C.

§ 51, et seq., in the United States District Court for the

Eastern District of Virginia, for personal injuries sustained

in the course of his employment. The defendant, Seaboard

Air Line Railroad Company, is charged with. negligently

. failing to use ordinary care to provide the plaintiff with a

‘reasonably safe place to work.

The case was tried before a jury. At the conclusion of

the plaintiff’s evidence, and again at the conclusion of all

the evidence, the defendant moved for a directed verdict on

‘ the’ground that the plaintiff had not shown that pis injury

_ resulted, in whole or in part, from the negligerice of the

defendant. Reserving a decision on the motions, the case

was submitted to the jury, under appropriate instructions,

. ‘which returned a verdict for the plaintiff in the amount of

$12,875. The defendant thereafter moved for judgment

notwithstanding the verdict. The District Judge sustained —

the’ motion and entered a judgment for the defendant on

the merits. We affirm the judgment of the District Court.

There is no serious dispute as to the basic facts. On April

8, 1961, the date of his alleged injury, plaintiff was em-

ployed by the defendant at its diesel shop in Richmond, Vir-

)

ee

i 17

ginia, as a machinist. At that time he was 60 years of age

and had worked for the defendant about 19 years. His

principal duty was to check air brakes on‘diesel locomotives. |

He had been performing this identical work at the same

location for several years. In the performance of his duties,

plaintiff was required to go on board diesel locomotives to

make inspections. —

cf

_ The portion of the shop where plaintiff worked consisted

of a long wooden: platform, generally referred to as the

shop platform, which ran parallel to the railroad tracks.

‘The locomotives to, be inspected were “spotted” on these

tracks. The shop platform was. built over a concrete pit,

the floor of which was approximately seven feet below the

level of the platform. ‘The diesel: locomotives had metal

platforms at the end, called the locomotive platform, and a —

‘metal catwalk running along the side. Both the catwalk

and the locomotive platform were about the same elevation

as the shop platform. Leading down from the locomotive

platform were three steps, referred to.as'a stepwell, each

two feet wide and 14 inches high. These steps were beneath

the level of the shop platform and were designed for use in.

boarding and leaving the locomotive. The distance from the

locomotive platform across the stepwell to the shop plat-

form was from 31 to 35 inches.’ The catwalk running

~ alongside the locomotive was about 11 inches from the shop

platform. At each side of the stepwell there were hand rails —

_ for use in boarding and leaving the locomotive, and to assist

in stepping to and from the shop platform. Hand rails,

sitar 38 inches high, were also outside the catwalk.

: This estimate of distance was given by the witness Ellis. However,

the plaintiff, and the other witnesses offered by the parties, estimated |

the distance to D be not more than 32 inches.

18

On the: day in question, the plaintiff was on. board

‘one of defendant’s diesel locomotives for the purpose of

_ checking the air brakes. The locomotive was in a stationary

position and parallel to the, shop platform. Shortly before

noon, after he had’ finished checking the locomotive, plain-

tiff left his work for lunch. He had no tools in his hand,

and carried only a flashlight in his pocket. As he stepped

from the locomotive platform across the stepwell, he slipped

and fell to the concrete shop floor beneath. There was no

. grease or oil or other similar substance on plaintiff’s shoes,

the platform, or “anywhere around.” Lighting conditions

in the diesel. shop were good that day. Light came from the

_ skylight overhead and an open door at the end of the pit..

_ The plaintiff testified that the weather was good, and that

~ he had no difficulty seeing where he was going. With com-

‘meridable candor, plaintiff stated that the accident hap- —

pened because he “misjudged” the distance from the loco-

motive platform to the shop platform, and simply did not

“take a long. enough step.” . : |

The plaintiff had been taking the exact same step, day

after day, 50 to 75 times a week, for several years prior to

his fall; and he had never fallen beforé. When he returned

to work following his injury, he continued to take the same _

step, with the same frequency, for another two and one-half

- years, and never fell again. Never at any time did the —

plaintiff make any complaint whatever about having’ to

take the step, nor did he make any suggestion about using

a tamp across the opening between the diesel platform and

the shop platform. No employee of the defendant, includ-

ing the plaintiff, ever protested concerning any danger or

hazard in takitig the step, either before or after the defend-.

-ant’s injury. Mr. Jarratt, the diesel shop foreman, an em-—

19

ployee of the defendant -for 51 years, testified’ that never

in his experience in the diesel shop had anyone fallen while

taking the same step from the locomotive platform to the

_ shop platform, a step his machinists took 50 or more times

_ a day. The testimony of Mr. Jarratt, while offered by the

defendant, was not questioned or challenged by the plaintiff.

L. A. Ellis, another machinist employed by the defend-

' ant, was permitted to testify, over objection, as an expert

on safety and with respect to a practice he had observed in

the defendant’s shop in Jacksonville, Florida. Ellis testified

that in the Jacksonville diesel shop, a metal ramp was —

furnished to provide access to locomotives from the shop .

platform. However, the evidence disclosed that the situa-

tion in Jacksonville was completely different .from the

situation in Richmond. At Jacksonville, the shop platform

was from 6 to 8 inches further from the locomotive plat-

form than at the Richmond diesel shop, and the ramp ex-

tended from the shop platform to the locomotive at a point.

’ * under the handrail running along the catwalk. Further, the

Jacksonville ramp was used by’ machinists while sliding,

handing and carrying parts and tools. between the loco-

motive catwalk and the shop platform. In addition to the

greater distance between the shop platform and the: loco-

motive platform, the Jacksonville shop did repair or over- —

haul work, which usually required 24 or more hours. In -

Richmond, this type of work was performed at the round-

house and none was done at the diesel shop. The Richmond -

diesel shop: is, concerned primarily with minor repairs re-

quiring not more than 8 hours of work. Although Ellis had

observed the ramps used in Jacksonville a considerable time

‘prior to plaintiff’s injury, he never made any complaint or

suggestion to the defendant concerning any danger or

hazard with respect to persons stepping to and from the —

locomotives at the Richmond diesel shop. Testifying as an ~~

_ expert, Ellis stated that a step from the locomotive plat- :

form to the shop platform in Richmond would be hazardoiis

‘if the lighting conditions were. not good at the time, but

et

that such a step would not be hazardous if lighting con- -

ditions were satisfactory. Specifically, he stated that if it |

was “a light day outside,” and in the “middle of the day,”

"he would not say there was anything hazardous. about

— the step.

=~

—

The narrow question presented for decision is whether, .

with reason, the conclusion may be drawn that the negli-

gence of the defendant played any part at all in producing

the injury for which the plaintiff seeks damages. We are

not unmindful of the liberal interpretation which the courts

have placed upon the Federal Employers Liability Act,

which was designed for the benefit and protection of rail-

road employees. Even so, the statute does not make the

employer an insurer, and there is a point beyond which its

application must be denied. Jnman v. Baltimore & Ohio

Railroad Company, 361 U.S. 138 (1959) and Atlantic .

Coastline R. Co. v. Craven, 4 Cir., 185 F. 2d 176 (1950).

In evaluating the evidence, largely undisputed, to deter-

mine whether the defendant was shown to be negligent,

even in the slightest, in failing to provide the plaintiff with

a reasonably safe place to work, thereby making the case

for the jury, we take as a guide the case of Rogers v. —

Missouri Pacific Railroad Co., 352 U. S. 500 ( sais where ©

. it is stated:

“Under this statute the test of a jury case is simply —

whether the proofs justify with reason the conclusion

ae,

21

that employer negligence played any part, even the

- slightest, in producing the injury or death for which

damages are sought. It does not matter that, from the

evidence, the jury-may also with reason, on grounds of

probability, attribute the result to other causes, in-

cluding the employee’s contributory negligence. Ju-

dicial appraisal of the proofs to determine whether a

jury question is presented is narrowly limitéd 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. Judges are’ to

fix their sights primarily to make that appraisal and, ©

if that test is met, are bound to find that a case for the

jury is made out whether or not the evidence allows the

jury a choice of other probabilities. . . . .

se.

. The employer is stripped of his common-law

defenses and fer-practical purposes the inquiry in these

cases today rarely presents more than the single ques- _

tion’ whether negligence of the employer. played any

part, however small, in the he inary death which

is the subject of the suit. . ,

* * *

“_.. The decisions of this Court after the 1939 amend-

ments teach that the Congress vested the power, of .

decision in these actions exclusively in the jury in all

but the. infrequent cases. where fair-minded jurors

cannot honestly differ whether fault of the ‘employer .

played any part in the employee’s injury. . . .”

22 ;

While the Rogers case emphasizes the liberal interpre-

tation that must be placed upon the statute, and defines the’

= narrowly limited ‘area in which the courts are permitted to

disturb jury verdicts in cases of this type, we do not under-

stand the decision to relieve the plaintiff from the burden of

proving some.act of negligence on the part of the railroad. '

In Dessi v. Pennsylvania Railroad Co., 3 Cir., 251 F. 2d

149 (1958), cert. denied 356 U.S. 967 (1958), the Court, _

in discussing the Rogers case, stated: |

“This language [in the Rogers case] indicates that

the role of a defendant’s negligence in helping bring

about the injury may be small. It does not suggest that

an F.E.L.A. plaintiff can carry his burden of proof

without evidence that the role was real. Indeed, the

paragraph containing the quoted sentence continues

- with this observation :

cee

limited to the single inquiry whether, with reason, the

conclusion may be: drawn that negligente of the em-

ployer played any part at all in the injury or death.

“The repeated use of the phrase ‘with reason’—

it appears three times in this short paragraph—is a

persuasive indication. that the court intended no de-

parture from the familiar and normal requirement of _

* our jurisprudence, as repeatedly stated in its own

father recent decisions, that the-party with the burden

of proof must ‘present probative facts from which the

pa tora and the causal relation could reasonably be

inferred. . wa

Judicial appraisal of the proofs to determine

whether a jury question is presented is, narrowly -

acolehaias ote jl cts

or ee

23

In\many respects, the instant case resembles, and we

believe is ruled by, the decision in Inman v. Baltimore &

~ Ohio Railroad Co., 361 U.-S. 138 (1959), where the em-

\ ployee claimed damages for an injury received when an

intoxicated automobile driver ran into him one midnight |

while he was on duty flagging traffic for a passing train.

The railroad was charged with negligence for failure to

_ use ordinary care to provide a reasonably safe place for the

@mployee. to. work. The judgment entered on the jury

_ verdict for the plaintiff was reversed by the Court of Ap-

peals of Ohio for the reason that “there was:a complete

failure of proof to establish . . . negligence.” The Supreme:

Court, using the Rogers case as a yardstick, affirmed, ob-

serving that the “burden of provirig that the crossing was

an unsafe place to work was on petitioner,” and that such

proof “depended on some type of testimony showing the

hazards at the crossing.” It was found to be of considerable

significance that “there [was] no evidence of complaint . to

the railroad, nor . . . other testimony of similar occurrences |

in the record.” Under such circumstances, it was reasoned

that the evidence was “too slender a reed” to say that the

decision of the-Ohio court was erroneous. Here, like in

Inman, there was no-evidence of complaint to the rail- |

road, or testimony of similar occurrences. Plaintiff had.

‘made the identical step many times each week over .a period

of years, both before and after his injury, without falling

or complaining of any hazard, The same was true with —

respect to ‘all other machinists working with the. plain-

tiff. No other hazard, such as oil, grease or debris, was

present. The area was well lighted, and the only witness,

who testified that the condition’ was haZardous qualified his

opinion by saying th4t so hazard would exist if there was

sufficient light to enable a person to see. This witness was

24 -

not present when plaintiff fell, and did not profess to know

“anything about the lighting conditions at that time. The

plaintiff stated he could see where he was stepping, and did

not contend that poor lighting played any part in the ac-

cident. His only explanation was that he’ simply misjudged

the distance and did not take a long enough step. Under

“these circumstances, to hold that a hazardous condition

existed, or that the employer ‘was negligent, even in -the

slightest, in not providing a safe place to work would,

in our opinion, be tantamount to: stripping the. statute of

all limitations and constituting the defendant an insurer

- of the safety of its employees. Consequently, we believe that

the evidence in this case, when taken in the light most

favorable to the plaintiff, presents one of those “infrequent

cases where fair-minded jurors. cannot honestly differ

whether fault of the employer played any part in the em- .

ployee’s injury.” Rogers v. Missouri eae Railroad Co.,

Supra.

We believe o our decision ‘dein finds suport in Cuddy v.

Western Maryland Railway, 229 F. Supp. 443 (M.D. Pa.,

. 1963), where a motion by tlie railroad for judgment not-

withstanding the verdict was sustained. The judgment was

affirmed by the Court of Appeals, Cuddy v. Western Mary-

land: Railway, 3 Cir., 332 F. 2d 371 (1964), and cértiorari

‘was denied by the Supreme Court of the United States, 379

U. S. 840.(1964). Also .see Atlantic Coastline R. Co. v.

Craven, 4 Cir., 185 F. 2d 176 (1950), where the Court of

Appeals reversed the trial court for failure to set aside the

jury verdict for the reason that “there was no substantial

evidence upon which the question of negligence could have

been submitted to the jury,” and Moore v. C. hesapeake &

a ee ern et Chand ponte nmacinted anata

25.

e:

‘O. R. Co., 340 U. S. 573 (1951), affirming the action of <<

_ the district court in sustaining a motion for judgment not-

withstanding the verdict.

Since dheire .was no evidence of negligence, the District

Court properly sustained the motion for jong not-

withstanding the verdict. ;

| Affirmed.

E SPENCER BELL, Circuit Judge, dissenting :

I do not agree that fair-minded jurors could not “honestly’

differ whether fault of the employer played any part”.in

Ambold’s injury. Rogers v. Missouri Pacific R.R. Co., 352

U.S. 500, 510 (1957). Time-and time again the Supreme

Court has said that “only when there is a complete absence

_of probative facts to support the conchiston reached [by the -

‘jury] does a reversible error appear.” Basham v. Penn-

- sylvania R.R. Co., 372 U.S. 699, 700-01 (1963). I thihk >

- the existence of ‘a condition which required the plai iff

to take a thirty-one to thirty-five inch step- over a séven .

foot void in the performance of his work > was sufficient

- evidence. of an unsafe place to work to take this. case to

the jury. The arguments set. forth in the majority opinion

should have been, and undoubtedly were, made to the jury.

The case having. | been properly submitted to them, I do not

think the jury’s verdict should have been distirbed. Dennis

v. Denver & Rio-Grande Western R.R. Co., 375 U. S. 208

(1963) ; Galhck'v. Baltimore & Ohio R.R. Co., 372 U.S.’

108 (1963) ; Webb v. Illinois Central R.R. Co., 352 U.S..

512 (1957); Rogers v. Missouri Pacific’ R.R. Co., ‘supra.

a

° =

. ,

eee ee LST er SS]

,

* oo

Believing that the judge’s intervention to set aside the ;

verdict was an intolerable invasion of the jury’s province, :

i would reverse the decision of the district judge and rein- —

state the j jury verdict.

%

APPENDIX Ww

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

No. 9838.

(>

oO Thornton R. Ambold,

Appellant,

: 7 vs. -

‘Seaboard ‘Airy Line Railroad Company,

in ae

~.

Ton

“se

APPEAL FROM THE UNITED STAtEs District CourT FOR |

THE EASTERN DISTRICT: OF ‘VIRGINIA, AT RICHMOND. .

Upon petition of the appellant, vi his counsel, aa for

cause shown,

eL-

27

™ Teds ordered that the issuance of a certified copy of the"

judgment of@fhis Court, in lieu of a mandate, to the Clerk

of the District Court in the above-entitled case, be, and it is |

hereby, stayed pending application of the appellant in the —

Supreme Court of the. United States for a writ of certiorari

to this Court, provided the application for a writ of certio-

rari is filed in the Supreme Court within thirty days from

~ May 29, 1965. | é

+ °

May 7, 1965.

-CLEMENT F. HaynswortH, Jr. .

| Chief Judge, Fourth Circuit

FILED | | |

May 7, 1965

aet

Maurice S, DEAN -

A true copy, =

Teste:

Maurice S. Dean, Clork,

_. U.S. Court of Appeals for the

Fourth Circuit

28

APPENDIX C

Federal Employers Liability Act, 45 U.S.C.A. § 51

“Every common carrier by railroad while engaging in

commerce between any of the several States or Territories,

_ or between any of the States and Territories, 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 Territories and any foreign nation or nations, shall be

_ liable in damages to any person 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 represen-

tative, for the benefit of the 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 kiv

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 carrier, or by

reason of any defect or insufficiency, due to its negligence,

in its cars, engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.

“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

and substantially, affect 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 con-

sidered as entitled to the benefits of this chapter.” |