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August 11, 1948


The opinion of the court was delivered by: MURPHY

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, for damages for injuries sustained by plaintiff, a resident and citizen of Brilliant, Ohio, while employed on October 8, 1945, in interstate commerce at defendant railroad's Mingo Junction Ohio Car Repair Shop.

The jury found for plaintiff; in answer to interrogatories found that defendant failed to furnish plaintiff with a reasonably safe place to work and that such failure was a cause of the accident; that negligence of the plaintiff contributed to the accident and reduced the total amount of damages, i.e., $ 10,000, found to have been suffered by the plaintiff as a result of the injuries sustained, by $ 3500, leaving a net amount of $ 6500. Although, just as plaintiff was about to rest her case, an amendment was offered and, over defendant's objection, *fn1" allowed, whereby plaintiff averred negligence of defendant in failing to provide plaintiff with sufficient help, no specific finding upon that ground was requested or made by the jury. We must assume however that in the general verdict in jury also found for the plaintiff on that ground. *fn2"

 When at the close of all the evidence defendant moved for a directed verdict, we reserved ruling and submitted the action to the jury. After the verdict defendant moved for judgment upon its request for directed verdict and in the alternative for a new trial. *fn3"

 As to the motion for judgment notwithstanding the verdict, the facts stated most favorably to plaintiff's case, drawing all reasonably possible inferences going to support the verdict, *fn4" are as follows:

 A.P.R.R. Class X29 box car had been inspected at the Wheeling Steel Corporation plant some four miles away and because of a broken floor and a sill supporting the floor requiring nailing, a card was placed on the side of the car indicating the need for said repairs and ordering the car shopped for repairs. The car was moved to the car repair shop and spotted on the outside track. It was again inspected at the repair shop by defendant's foreman and another card prepared showing the nature of the repairs required.

 Every car sent to the repair shop was sent for repairs of some kind. All were repaired and cleaned out so as to be fit for resuming revenue service. It was customary to have the cars cleaned out before they were repaired. The inspection of the cars on this occasion, and thereafter placing a tag on the side of the car or the car door showing what repairs were required, was the usual, customary practice.

 In the car at one end there were some steel bands, the kind used for holding steel in place when being shipped. Those bands, 30 to 50 of them, varied in length from 5 to 10, 12, and 15 feet, 1 1/2 inches wide, 1/16 inch thick in center, 1/32 inch thick on the edges. The 15-foot band weighed approximately 5 pounds; the short bands 'hardly weighed anything.' The nearest end or portion of any of the bands from the door of the car was 10 to 12 feet so that all the bands were in an over-all space of 5 to 7 feet; they were not laying flat on the floor but 'all doubled up,' and bent so that the pile was knee high. The remainder of the floor, 33 to 35 feet in length, was clear of debris. The bands were at one end of the car; the hole 17 to 19 feet away on the other end of the car.

 Plaintiff, a forty-six year old woman, had worked two years at defendant's car shop as a laborer and later as a carman's helper and was on October 8, 1945, the day of the accident, employed in interstate commerce. She had cleaned out cars on many prior occasions and was familiar with the work of cleaning out metal bands. Plaintiff knew that every car on the repair track was sent in for some kind of repair. In every case before entering the car she looked at the card on the car to ascertain the repairs required in order to know what to be careful about. Mr. Mathieu, defendant's foreman, directed plaintiff to clean out the car in question. She looked at the card on the side of the car, noted the repairs required, knew the floor was broken but not precisely where the hole was. She climbed a ladder, entered the car through an open door. From that position the hole was 5 to 6 feet away to her right, while to her left 10 or 12 feet away was the closest end or portion of the steel bands. She did not look about to see where the hole was but proceeded to the pile of bands, picked up 5 or 6 short pieces, returned to the door and threw them out. While walking toward the door she did not look toward the direction of the hole or look around to see where the hole was. She returned to the pile; while on some prior occasions she picked up 2 or 3 long pieces at a time, she next took hold of the end of one band and proceeded walking backwards pulling the band in the direction of the open door, continuing to walk backwards past the open door until her left foot went down through the hole, her right foot following so that she landed violently in a sitting position on the car floor, her left foot resting upon the pipe beneath the floor. At no time, either before she started pulling the metal band or while she was pulling it, did plaintiff look to see where the hole was, or, while walking backwards, to see where she was going either by stopping to look or, while walking, to look over her shoulder. Plaintiff knew the company had a rule which forbade walking backwards, but plaintiff states she was afraid that the other end of the metal band would become caught on the floor or nails, etc., and if it did it would when loosened spring as high as her head; that as a result she concentrated her attention on the other end to avoid being hurt and therefore did not look where she was going. Furthermore, says plaintiff, on other occasions two persons were sent to do this work. Sometimes they worked together in pulling the bands out; sometimes one on each end. They had worked both ways. When there was one on each end, one would pull and walk forward while the other person watched the other end of the band to prevent its becoming caught and later springing. On this occasion no helper was assigned. While she was sitting on the floor she first examined the hole.

 In rebuttal, just as the case was about to close, plaintiff named five persons who had been assigned with her on previous occasions to clean out such bands from box cars.

 Plaintiff's theory of recovery was first based upon the charge of failure to provide a safe place to work. The evidence showed that the customary practice was followed in inspecting the car, placing a card on the side of the car noting the repairs required, shopping it for repairs, later in inspecting the car on the repair track and tagging it accordingly, and in ordering that the car be cleaned out before sending repairmen in to make the repairs. Plaintiff knew every car on the repair tracks was there for repairs. Her work was to help the repairmen. She also knew about the broken floor before she entered the car. There was no evidence to show any safer way to repair cars.

 This is obviously not a case where a claim is made of any defect, deficiency or insufficiency in the car, as such; cf. Section 1 of the Act, 45 U.S.C.A. § 51, with Section 6 of the Safety Appliance Act, 45 U.S.C.A. § 6, and see Note 39 thereto; but is based upon a claim of negligence in furnishing the car in such condition as a place of work. The stringent liability of the Safety Appliance Act is missing. Myers v. Reading Co., 1947, 331 U.S. 477, 67 S. Ct. 1334, 91 L. Ed. 1615. There is no evidence of failure to inspect, no claim of negligence as to what caused the hole to be in the car, in shopping it, or in ordering that it be repaired. A railroad must have repair shops and its cars must be repaired.

 We have here not a hidden defect or danger but a perfectly obvious hole in the floor of a car, shopped for the purpose of repairing that hole, and an injury to a car repairman's helper who, knowing of the existence of the hole, is sent to clean out debris from the car so that the repairs may be made and the car returned to revenue service.

 Defendant cites Houston's Adm'x v. Seaboard Air Line Ry., 1918, 123 Va. 290, 96 S.E. 270, 272; Berry v. Director General of Railroads, 1921, 173 Wis. 473, 180 N.W. 824, to the effect that 'The rule that it is the duty of a master to use ordinary care to provide a reasonably safe place in which the servant is to work does not generally apply where the servant is sent to make repairs in order to render the place safe.' On the contrary, we think the correct rule is stated in Terminal R. Ass'n of St. Louis v. Howell, 8 Cir. 1948, 165 F.2d 135. Generally a master must furnish his employee a safe place to work. Bailey, ...

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