Before BIGGS, Chief Judge, and STALEY, Circuit Judge, and LEAHY, District Judge.
These are appeals from a judgment of the district court entered upon a jury verdict in favor of the defendants in a personal injury action brought by the plaintiff Cliffopd Barney. Barney appeals from that judgment and defendant, John H. Grace Company, cross appeals from the denial of its motion to dismiss the complaint as to it on the grounds of lack of jurisdiction.
Plaintiff, an employee of Boyle-Midway, Inc., of Cranford, New Jersey, was injured while climbing upon a railroad tank car for the purpose of obtaining a sample of pine oil prior to unloading the oil. His employer was the consignee of the car which had been shipped by Hunt Manufacturing Company of Cleveland, Ohio, through the facilities of various railroads to the consignee's siding at Cranford. The car had been leased to Hunt by Grace, an Illinois partnership.
The uncontroverted evidence establishes that Barney was ascending the ladder which led to the dome of the car when he fell, suffering the injuries for which suit was brought. He testified that he had taken two or three steps when the ladder sprang back, causing him to fall to the ground. A fellow employee testified that after the accident he observed a break in the safety railing about twenty inches to the left of the ladder. The safety railing was bracketed to the inner side of the ladder. It was plaintiff's theory that the break in the railing caused the ladder to which it was attached to swing out, thereby throwing him to the ground.
Two suits, one against the Staten Island Rapid Transit Railway Company ("railroad"), which had brought the car to the siding, and the other against Grace and Hunt, were brought in a New Jersey state court. They were transferred to the district court on the basis of diversity jurisdiction and the provisions of 28 U.S.C. § 1441, and were consolidated for trial. At the pretrial hearing it was noted that the plaintiff was relying on the Safety Appliance Act, 45 U.S.C.A. §§ 1-46, as to his cause of action against the railroad. Nevertheless, the district court instructed the jury that a violation of the Act would only be evidence of negligence, and the railroad would not be liable unless the defective safety appliance could have been ascertained by a reasonable inspection. It is this instruction which Barney challenges in this court, contending that the district court should either have directed a verdict against the railroad or charged that the Act gave rise to absolute liability.
More particularly, the plaintiff concedes that, because his cause of action is based on diversity, the substantive law of New Jersey, including that pertaining to contributory negligence, is applicable. See Fairport, Painesville & Eastern Railroad Co. v. Meredith, 292 U.S. 589, 54 S. Ct. 826, 78 L. Ed. 1446 (1934). However, he asserts that the Safety Appliance Act defines the standard of care required of the railroad in the circumstances of this case, and that liability for a violation of the Act is absolute in the absence of any evidence that plaintiff was contributorily negligent. It is contended that no evidence of contributory negligence was adduced to present a jury question.
It can no longer be said that only railroad employees are within the protection of the Safety Appliance Act. Shields v. Atlantic Coast Line Railroad Co., 350 U.S. 318, 76 S. Ct. 386, 100 L. Ed. 364 (1956); Mazzucola v. Pennsylvania Railroad Co., 281 F.2d 267 (C.A.3, 1960). Indeed, it is conceded that plaintiff is a member of a class of persons for whose benefit the statute was enacted. But the railroad argues that the absolute liability resulting from a violation of the Act and a showing of causation obtains only when suit is brought by an employee under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51-60. It is asserted that when jurisdiction is based on diversity of citizenship the common law of the state where the accident occurs is fully applicable. The railroad concedes that New Jersey would apply the Safety Appliance Act as an appropriate standard of conduct, but urges that under the law of that state a statutory violation does not give rise to civil liability unless the violation has been a negligent one.
A similar argument was advanced in O'Donnell v. Elgin, Joliet & Eastern Railway Co., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187 (1949), but was rejected. The Supreme Court noted that some states treat a statutory violation as some evidence of negligence, while others refer to it as prima facie evidence of negligence or as giving rise to the doctrine of res ipsa loquitur. But Mr. Justice Jackson noted that the Court "early swept all issues of negligence out of cases under the Safety Appliance Act." 338 U.S. at 390, 70 S. Ct. at 204. It is true that suit in that case was brought by an employee under the F.E.L.A. Subsequently, however, in deciding Shields v. Atlantic Coast Line Railroad Co., the Court said, 350 U.S. at 325, 76 S. Ct. at 391:
"There is no merit in respondent's contention that, since petitioner is not one of its employees, no duty is owed him under § 2 of the Act. Having been upon the dome running board for the purpose of unloading the car, he was a member of one class for whose benefit that device is a safety appliance under the statute. As to him, the violation of the statute must therefore result in absolute liability. * * *" (Emphasis supplied.)
This unqualified language would appear to eviscerate the railroad's argument in the case at bar.*fn1
Moreover, an analysis of the relevant cases convinces us that New Jersey will impose absolute liability for a statutory violation proximately resulting in injury if there is a clear legislative intent to do so. Carlo v. Okonite-Callender Cable Co., 3 N.J. 253, 69 A.2d 734 (1949);*fn2 McBride v. Maryland Casualty Co., 128 N.J.L. 64, 23 A.2d 596, 138 A.L.R. 932 (1942). That Congress intended to prescribe such liability on behalf of those within the protection of the Safety Appliance Act is manifest from the O'Donnell and Shields cases, among others.
The railroad places great reliance on Jacobson v. New York, N.H. & H. Railroad Co., 206 F.2d 153 (C.A.1, 1953), aff'd per curiam, 347 U.S. 909, 74 S. Ct. 474, 98 L. Ed. 1067 (1954). However, the issue in that case was whether, in the absence of federal jurisdiction based on diversity of citizenship, there is federal question jurisdiction of a suit by one not an F.E.L.A. employee whose claim is premised on the Safety Appliance Act. Since that Act does not purport to confer a right of action, the question was answered in the negative.
The railroad next argues that the Safety Appliance Act is not applicable because the tank car was not being hauled or used on its line at the time of the accident.*fn3 It is asserted that the siding upon which the car was resting was owned by Barney's employer. The argument is without merit. Boyle-Midway's ownership of the siding is not significant, for it was the railroad which spotted the car at that point and removed it after the unloading operation. There is no evidence that anyone other than the railroad had control of the spotting and removal operation. To exclude a carrier from the provisions of the ...