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November 9, 1965


The opinion of the court was delivered by: LORD, III

 Plaintiff brought this suit under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) to recover on two causes of action for two injuries he received, allegedly due to defendant's negligence, during the course of his employment on January 28, 1961 and January 4, 1964. *fn1" The jury returned its verdict finding plaintiff guilty of contributory negligence to the extent to 45% and awarding $4,400 net damages for each accident.

 Before us now is plaintiff's timely motion under F.R.Civ.P. 59(e) to modify the judgment on the grounds that there was no evidence of contributory negligence; that that issue was improperly submitted to the jury; and that, therefore, the finding of 45% contributory negligence in each cause of action should be eliminated and the verdicts restored to their full amount of $8,000 without a 45% reduction.

 In the accident of January 4, 1964 plaintiff was walking on the regular path from the inspection pit to the enginehouse. His rubbers had become soaked with fuel oil caused by the fueler flooding the walkway by permitting fuel oil to overflow. The path was unshoveled from a snowfall which occurred several days previous to the accident and the snow had melted and frozen into ice. Because of the icy path and rubbers soaked with fuel oil plaintiff slipped, fell and was injured.

 In actions under the F.E.L.A. the burden of proving contributory negligence is, of course, on the defendant. Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915); Moore, Admr. v. Atchison, Topeka & Santa Fe Railway Company, 28 Ill.App.2d 340, 171 N.E.2d 393, 97 A.L.R.2d 511 (1960). And in these cases, the sufficiency of the evidence to take the issue of contributory negligence to the jury is to be tested by the same standards that are used to test the sufficiency of plaintiff's evidence on the issues of negligence and proximate cause. Cf. Ganotis v. N.Y. Central Railroad Co., 342 F.2d 767 (C.A.6, 1965); Daulton, Admx. v. Southern Pacific Company, 237 F.2d 710 (C.A.9, 1956). Tested by these standards, there was sufficient evidence, although it was extremely meager, to permit a finding of contributory negligence in the accident of January 4, 1964. Plaintiff testified that he was wearing rubber overshoes which had been soaked with fuel oil. The testimony was:

"Q You said you had some rubber overshoes on; is that right?
"A I had regular work rubbers on.
"Q Did they fit over your work boot?
"A Over top of my work shoes.
"Q But you didn't take those off before you fell; is that right?
"A I didn't take them off at all. You see, when you walk around that fuel oil it soaks up in your rubbers and it is just like walking on glass.
"Q But if you had taken off your rubbers you wouldn't have had the fuel oil on when you were walking back, would you?
"A If I would have took my rubbers off I would have catched a cold taking the rubbers off.
Another thing, I would have slipped anyhow, probably, because my shoe soles were old and they would have slipped anyhow on the ice."

 Thus, as to the second accident, there is at least some suggestion in the evidence that the plaintiff might have taken some additional precautions for his own safety. While the percentage of blame attached to plaintiff by the jury seems out of all proportion, that determination was nonetheless for the jury.

 As to the accident of January 28, 1961, however, the situation is entirely different. The record is utterly barren even of a suggestion that the plaintiff could have acted otherwise than he did, short of stopping work entirely. Defendant's only argument is that plaintiff had worked at the engine pits for 13 years and that he was aware of and had complained about the presence of spilled oil. Defendant seems to argue that plaintiff's continued presence at the spot in the face of the known dangerous condition was evidence of contributory negligence. It is not. If anything, it is voluntary assumption of risk, - a defense that was completely removed from the Federal Employers' Liability Act by the 1939 Amendment. 53 Stat. 1404, c. 685, 45 U.S.C.A. § 54; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610 (1943).

 The distinction between contributory negligence and assumption of risk is a shadowy one. See Prosser, Law of Torts, (3d ed., 1964), pages 451-452; James, Assumption of Risk, 61 Yale L.J. 141 (1952); Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. at page 63, 63 S. Ct. 444. However, it is necessary to make this distinction because the one is a partial defense and the other is no defense at all. Koshorek v. Pennsylvania Railroad Company, 318 F.2d 364, 367 (C.A.3, 1963). Prior to 1939 the situation was different. Contributory negligence still operated merely to reduce damages, but assumption of risk was a complete defense. Thus, it is necessary to turn to the pre-1939 decisions to determine what it was that Congress intended to abolish.

 In Schlemmer v. Buffalo, R. & P.R. Co., 205 U.S. 1, 27 S. Ct. 407, 51 L. Ed. 681 (1907), the Court had before it the first invasion of the defense of assumption of risk. The Act of March 2, 1893 (27 Stat. at L., Chap. 196) required the use of automatic couplers. Section 8 of that Act provided that any employe injured by any car in use contrary to the provisions of the Act shall not be deemed to have assumed the risk thereby created. Plaintiff's decedent was killed when he was compelled to go between cars not equipped with automatic couplers. The lower court nonsuited plaintiff on the ground of contributory negligence. The Pennsylvania Supreme Court affirmed. In reversing, Mr. Justice Holmes said, speaking of assumption of risk, at pp. 12-13, 27 S. Ct. at p. 409:

"* * * It [assumption of risk] is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated when he submitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes, on a general principle of our law. Probably the modification of this general principle by some judicial decisions and by statutes like § 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist.
"Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. * * * But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name. * * *"

 When that case again reached the Supreme Court, Schlemmer v. Buffalo, R. & P.R. Co., 220 U.S. 590, 595-596, 31 S. Ct. 561, 563, 55 L. Ed. 596 (1911), the Court said:

"* * * While, as was said in the case when here before, assumption of risk sometimes shades into negligence as commonly understood, there is, nevertheless, a practical and clear distinction between the two. In the absence of statute taking away the defense, or such obvious dangers that no ordinarily prudent person would incur them, an employee is held to assume the risk of the ordinary dangers of the occupation into which he is about to enter, and also those risks and dangers which are known, or are so plainly observable that the employee may be presumed to know of them, and if he continues in the master's employ without objection, he takes upon himself the risk ...

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