McLaughlin, Staley and Adams, Circuit Judges.
The plaintiff in this action, brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., appeals from an adverse judgment. At the close of the plaintiff's presentation of his case, the defense moved for dismissal for failure to prove a prima facie case. This motion was granted and judgment was entered dismissing the action.*fn1
In 1963, Anthony Pehowic, the plaintiff, was employed as a trainman by the Erie Lackawanna Railroad Company. His duties required his presence at an area belonging to the Erie Lackawanna known as Chatham Yard. Prior to the incident in question, he had noted that the area of Track No. 1, adjacent or contiguous to the yard itself, was overgrown with vegetation. Brush and grass overhung the tracks and grew between the rails. He also noticed large concentrations of bees in the area. He stated that the presence of brush made it unsafe for anyone to ride on the sides of the cars. He testified that he notified the dispatcher's office of the presence of the brush and the bees and had requested permission to leave the area.
On the night of July 22, 1963, the crew of which Mr. Pehowic was a member was engaged in the operation of shifting cars in Chatham Yard. Mr. Pehowic stationed himself on the front running board of the engine as it backed out of the yard on Track No. 1. He testified that he could feel the brush as it struck his shoes. He felt a burning sensation in his chest and looked down and brushed a bee from his shirt. He became ill and was treated for a reaction to a bee sting.
In his complaint the plaintiff asserted that the railroad was negligent in causing or permitting him to work in a dangerous location; the negligence specifically alleged was the failure to trim the brush and undergrowth. This negligence was asserted to have contributed to his injury. In dismissing the action, the district court concluded as a matter of law that the jury could not reasonably infer that the defendant's negligence contributed to plaintiff's injury.
The procedural setting of this case requires us to view the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff, Sano v. Pennsylvania R. Co., 282 F.2d 936 (C.A. 3, 1960).
A railroad has a non-delegable duty to provide its employees with a reasonably safe place to work, Shenker v. Baltimore & O.R. Co., 374 U.S. 1, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963). Under the Act an employer is liable if the injury was caused in whole or in part by its negligence.
"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448, 1 L. Ed. 2d 493 (1957), (emphasis added).*fn2
A review of the decisions of the Supreme Court with reference to the integrity of the jury's function in these cases,*fn3 keeping in mind the purposes of the Act and the liberal construction given it,*fn4 teaches that a trial court is justified in withdrawing such issues from the jury's consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee.
The district court concluded that there was no evidence from which the jury could infer a causal relation. Direct evidence is not essential. Circumstantial evidence is sufficient. Rogers v. Missouri Pacific R. Co., 352 U.S. at 508, n. 17, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493.
In Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 113-114, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963), the Supreme Court held there was sufficient evidence to sustain the jury's finding that an insect bite had been caused by the employer's breach of duty. The Court characterized the issue as "whether or not the insect was from or had been attracted by the pool" of stagnant water which had been present on the railroad property for some time. There was testimony by the plaintiff that he had seen similar such insects crawling on animal carcasses in the pool and testimony by medical witnesses that such pools attract and breed insects. Such circumstantial evidence was said to be sufficient to support a causal inference.*fn5
In this case the railroad is chargeable with notice of the existence of the brush and the presence of the bees in large concentrations.*fn6 Mr. Pehowic testified that he had on a prior occasion notified the dispatcher and requested permission to leave the area because of these conditions. The railroad thus had notice of the existence of a hazardous condition, Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 80 S. Ct. 242, 4 L. Ed. 2d 198 (1959); Nivens v. St. Louis Southwestern R. Co., 425 F.2d 114 (C.A. 5, 1970). It is not unreasonable to conclude that some injuries from these conditions either separately or in combination were foreseeable by the employer, Gallick v. ...