The opinion of the court was delivered by: WYCHE
This is an action by the plaintiff, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained while in the defendant's employ as an electrician, when, after having inspected the electrical equipment on a locomotive, he stepped down toward the ground, into an open ditch or sump containing scalding water.
The complaint alleges, inter alia, that the defendant failed to provide a safe place for the plaintiff to work, failed to light the yard properly, and carelessly maintained a vat containing scalding water, and permitted the same to remain in the vicinity where plaintiff was working without notice or warning of its presence.
At the conclusion of the evidence, the defendant moved for a directed verdict upon the ground that the plaintiff had failed to show the violation of any duty toward him by the defendant, which resulted in his injuries. The motion was overruled, the case was submitted to the jury, following the charge, to which no exceptions were taken, and the jury returned a verdict for the plaintiff in the sum of Eighteen Thousand ($ 18,000) Dollars. The matter is now before me on the motion of the defendant for judgment non obstante veredicto, and, failing in that, for a new trial.
The evidence discloses that on February 23, 1945, about ten o'clock at night, the plaintiff was instructed to cut-in the electrical equipment in the cab of a locomotive of the defendant, which had been left facing north on a track, very close to a high retaining wall on the east side. Before entering the engine cab on the left-hand or fireman's side, the plaintiff cut-in the switch on the right side with a stick, then walked around in front of the locomotive, and cut-in 'the pneumatic portion,' which is controlled at a point just under the cab on the fireman's side. Then he mounted the cab on the fireman's side and worked across to the right-hand side of the engine, inspecting the various indicators, ascertaining whether or not they were in proper operating condition. After completing his work, the plaintiff looked down toward the ground from the right-hand side of the engine, inspecting the various indicators, ascertaining whether or not they were in proper operating condition. After completing his work, the plaintiff looked down toward the ground from the right-hand side of the cab of the engine, saw nothing unusual, turned and climbed down the engine stirrups, backwards, facing the side of the engine. When he reached the bottom stirrup, he stepped down to what he thought was the ground; actually, he stepped into an open ditch or sump, containing scalding water, estimated to be from six to eight inches deep, causing his feet to be badly scalded.
The sump into which the plaintiff stepped was an unprotected opening about two feet square, and about two feet deep, and was at the end of an open and unprotected drainage ditch about one hundred and twenty-five feet long running between the retaining wall and the railroad track, and was used to carry off water that came from the overflow of the tanks when they were filled at the water spout, from the overhead structure, and from the scalding water and steam drained from the boilers of locomotives when they were 'blown down'.
Though there were two lights, one within thirty-five feet of the accident area, and another about fifty feet away from the point of the accident, neither of these afforded any light in the narrow space between the retaining wall and the east side of the locomotive. There were no signs or notices of any kind to warn of the presence of the scalding water in the ditch, at night one could not ascertain the presence of scalding water in the ditch or the sump.
The defendant had no rule about any special way, or side from which its electricians should descend from an engine after checking the electrical equipment. It was a matter of the individual's choice. On the left-hand side of the locomotive upon which plaintiff was working there were other tracks, on the side the plaintiff descended there were none. Plaintiff testified that he was not familiar with the area and did not know of the presence of the sump or the drainage ditch.
As a result of the accident, the plaintiff suffered third degree burns of both feet; he was confined to the hospital for seventy-five days; the skin sloughed off of his feet in large areas; he suffered severe pain each time his feet were dressed; he suffered loss of sleep; two skin grafting operations were performed upon his thighs in order to obtain skin to graft upon the burnt portions of his feet; plaintiff was given numerous injections of penicillin each day for seventeen days to relieve infection in his feet.
After leaving the hospital the plaintiff returned to the hospital for fifteen or more treatments. He could not put on his shoes for several weeks after his return home. His feet are always cold; they are discolored and disfigured. Plaintiff is still under the medical care of doctors. It is necessary for him, in order to be able to work, to give several hours each day to exercising, using contrast baths, dressing and care of his feet. The testimony discloses that he has suffered permanent injuries.
Plaintiff returned to work June 17, 1945, at the same rate of pay, and tried inspecting locomotives in the open, which was not so strenuous as the work he formerly performed in the shop, but with the advent of cold weather, he gave this up for inside work, and finally, for bench work, which he has followed since, except for vacation periods and several other absences.
To sustain its motion for judgment non obstante veredicto, defendant relies upon the cases of Missouri Pac. R. v. Aeby, 1928, 275 U.S. 426, 48 S. Ct. 177, 72 L. Ed. 351, and Delaware, etc., R. v. Koske, 1929, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578.
The facts in these cases are distinguishable from the facts in this case, and are at variance with the reasoning of the Supreme Court in the most recent cases of Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967; Blair v. B. & O.R. Co., 1945, 323 U.S. 600, 65 S. Ct. 65 S. Ct. 545, 89 L. Ed. 490, and Bailey v. Central Vermont Ry., 1943, 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444.
Furthermore, it will be seen that the cases relied upon by the defendant were decided before the Amendment of 1939, withdrawing assumption of risk as a defense in Federal Employers' Liability cases. The decision of the Supreme Court in the Tiller Case, supra, indicates that the ...