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January 7, 1947


The opinion of the court was delivered by: KIRKPATRICK

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for the death of the plaintiff's husband. The complaint also stated a cause of action under the Boiler Inspection Acts, 45 U.S.C.A. § 22 et seq., but upon that issue the jury, answering interrogatories, found in favor of the defendant. The jury found further that Eckenrode's death was caused by the negligence of an employee of the defendant and that it was contributed to by negligence on the part of Eckenrode, and diminished the damages by 50 per cent as a result of the latter finding. The defendant has moved for judgment upon its request for a directed verdict.

The facts, stated most favorably to plaintiff's case, and drawing all reasonably possible inferences going to support the verdict, are as follows:

 Eckenrode was a brakeman 62 years old and had been employed by the railroad for 42 years. The accident occurred about noon on October 8, 1943, a clear, dry day. At the point of the accident the main track was on an up-grade toward the north. A short distance to the south, a siding, known as the Hastings Fuel siding, diverged from the maintrack to the right, also in a northerly direction but on a down-grade, so that between the arms of the Y formed by the two tracks there was a small embankment, with the main track above and the siding below.

 The defendant's train consisting of 22 loaded coal cars was moving up-grade on the main track in order to couple the head car to some other cars which were standing at the top of the grade. The engine was at the rear of the train, headed forward and pushing. Eckenrode, in the performance of his duties, made a coupling, threw the switch at the Hastings Fuel siding so that the train could proceed up the main track and returned to the caboose behind the engine, after which the whistle was blown, the bell rung and the movement began.

 After passing the switch, the engine had about 200 feet to go in order to complete the movement. The train was a heavy one and, in spite of the fact that the track sanding equipment was operating properly, the grade was such that from time to time the driving wheels of the locomotive would slip and the train momentarily lose headway.

 The locomotive was being driven by Sunderlin, the fireman, who was also a qualified engineer. He was sitting in the cab on the right side. Shortly after the movement began, the engine being then at a point about 50 feet past the switch and moving very slowly -- less than two miles an hour -- he looked out the side window and saw Eckenrode on the siding opposite the cab, walking along in the direction in which the train was moving and 10 or 12 feet away and 3 or 4 feet below. Eckenrode made a joking remark about getting a crowbar to help push the train up the hill and Sunderlin answered in kind. After that, he did not see Eckenrode again until he looked out of the window about three car lengths farther on and saw his body lying on the embankment to the right of the track about 5 feet from the front part of the engine, head toward the engine and feet down the embankment.

 The plaintiff's theory of the manner in which Eckenrode met his death was that in attempting to put extra sand on the track in front of the driving wheels his head had been struck by a part known as the lap and lead lever -- a bar which moves forward and backward on the outside of the front drivers, very slowly when the wheels are doing their duty but very rapidly when the slip and revolve at high speed. There was evidence to support this theory in that another brakeman saw Eckenrode, after he had walked about a hundred feet along the siding, pick something up from the ground and start diagonally up the embankment toward the main track, holding his two closed hands out in front of him.

 Marks on the lap and lead lever and the cylinder head show that in some manner Eckenrode's head was between the two when it was struck. How it came to be there does not appear. Looking at the photograph of the parts of the engine involved, one would scarcely wish to hazard a guess as to what occurred. Eckenrode may have merely misjudged his distance, when he attempted to spread his handful of sand on the track, or he may have deliberately leaned over to examine the sand pipe where it came down to the track, taking the chance that he could draw back before the wheels slipped again. Or, having placed his head in dangerous proximity to the moving lever or walking along dangerously close to it, he may have slipped or stumbled. The possibility (if there was any such possibility) that the accident happened entirely without negligence on his part is eliminated by the jury's finding that his negligence contributed to the accident.

 In answer to the interrogatory submitted by the Court, the jury found that Sunderlin was negligent 'in not seeing Eckenrode after their conversation' and, on this basis alone, *fn1" found a verdict for the plaintiff.

 The basis of liability under the Federal Employers' Liability Act is negligence and, in spite of the observation of the Court in Griswold v. Gardner, 7 Cir., 155 F.2d 333, 334, that 'it is difficult to conceive of a case brought under this Act where a trial court would be justified in directing a verdict', it is still the duty of the Court to determine whether the plaintiff has produced any evidence of negligence on the part of the defendant and, if not, to direct a verdict. See Brady v. Southern Railway Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239.

 The definition of negligence under the Employers' Liability Act as stated by the Supreme Court differs in nowise from its definition under the general law, except possibly for added emphasis upon the accepted corollary that the standard of care must be commensurate with the dangers of the business. In Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 67, 63 S. Ct. 444, 451, 87 L. Ed. 610, 143 A.L.R. 967, the Court said, '* * * the employer's liability is to be determined under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.'

 The Tiller case made it plain that under the Statute every phase of the doctrine of assumption of risk is completely eliminated, and it must not enter into the Court's consideration either as a defense or, upon the issue of negligence, as an element in determining the measure of the employer's duty of care to the injured employee. The practical effect of the Tiller decision upon the present case is that, for the purpose of determining what duty of care Sunderlin owed to Eckenrode, the latter must be treated as though he were a non-employee in a position in which he had a right to be. However, while the fact that he was an employee in no way reduced the duty of care which the defendant owed him, neither did it increase it, and the Court need not ignore the fact that the deceased was not a child or an infirm or incompetent person but a man of mature years in full possession of all his faculties and entirely familiar with the danger involved in getting too close to a moving locomotive.

 I do not think that an engineer, engaged in operating a slowly moving locomotive, in broad daylight, is bound to keep a man walking along beside the cab 10 to 15 feet away under continuous observation, or that his not doing so is negligence.

 Sunderlin could see that Eckenrode, as he walked along the siding, was not in a situation which was even potentially dangerous and he knew that there was nothing in Eckenrode's duties which would require him to board the train or even to come close to it until after the waiting cars had been coupled and the movement ended. That coupling would be made by the other brakeman and Eckenrode, who had nothing to do with it, could properly have ridden in the caboose. The plaintiff's suggestion that Eckenrode's joking remark that he would get a ...

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