Hastie, Chief Judge, and McLaughlin, Circuit Judge. Hastie, Chief Judge (concurring).
McLAUGHLIN, Circuit Judge:
Appellant, William J. Carter, was injured while traversing property of appellee General Motors Corporation (General Motors) enroute to the job site of his employment with appellee Union Railroad Company (Railroad). He brought suit against the railroad, under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA), and against General Motors, alleging common law negligence and basing jurisdiction on diversity of citizenship and amount in controversy. With regard to the FELA claim, appellant alleged that the railroad had failed to furnish him with a reasonably safe place in which to work.
At the close of appellant's case, the trial court granted the railroad's motion for a directed verdict, on the theory that Carter had failed to prove that he was within the scope of his employment when injured. Trial continued against General Motors, a verdict of $600 was returned, and a judgment entered thereon. A motion for a new trial was subsequently denied. On this appeal, the rulings of the trial court, directing a verdict in favor of the railroad and denying appellant's motion for a new trial against General Motors are challenged.
Appellant was part of a railroad crew whose starting point was a shanty located at the General Motors Curry-Hollow plant in West Mifflin, Pennsylvania. Because the crew reported to the General Motors plant each day, the president of the railroad had entered into an agreement whereby railroad employees could use the plant lot to park their cars.*fn1 The crew was notified of these arrangements and though some employees utilized other parking areas, this lot was used by railroad crew members.
From the parking area it was necessary for an employee to pass through the main gate of the plant, turn right and walk along a dirt path, about 80 to 90 yards to the shanty.*fn2 The path ran alongside a cyclone fence and was unlit. The railroad exercised no control over the path, the sole responsibility for maintaining said property being General Motors'.
On the day of the accident, February 8, 1965, the path was slushy and muddy from rain. As Carter proceeded, the dirt slipped under his foot; he grabbed the fence to keep from falling, twisting his body as he did so, causing injuries to his lower back.
We are of the opinion that, under the circumstances presented, the trial court erred in directing a verdict for the railroad.
The first inquiry is whether, at the time of the accident, appellant was "employed" by the railroad.*fn3 The cases establish that the FELA applies not only when an employee is injured while actually engaged in the performance of his railroad duties but also when an employee is traversing the employer's premises and in some circumstances, premises adjacent to those of his employer on his way to or from his work. Bountiful Brick Company v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72 L. Ed. 507 (1928); Erie R.R. v. Winfield, 244 U.S. 170, 37 S. Ct. 556, 61 L. Ed. 1057 (1917); Metropolitan Coal Company v. Johnson, 265 F.2d 173 (1 Cir. 1959); Sassaman v. Pennsylvania R.R. Co., 144 F.2d 950 (3 Cir. 1944).
Unlike Metropolitan Coal Company and Sassaman, supra, we are not here concerned with an injury to a railroad employee occurring long after he left the place of his employment or long before he arrived on the premises. Appellant was injured while enroute to his very job site from a parking lot provided for his use. Thus, he was clearly within the course of his employment. Bountiful Brick Company v. Giles, supra; Erie R.R. v. Winfield, supra; Mostyn v. Delaware, L. & W. R.R., 160 F.2d 15 (2 Cir. 1947), cert. denied, 332 U.S. 770, 68 S. Ct. 82, 92 L. Ed. 355 (1947).
While the parking lot used and the property crossed by appellant belonged to General Motors, the use thereof by railroad employees was within the expectations and intentions of the railroad. Appellant's employer went to great lengths to make the parking lot available to its employees. It agreed to indemnify General Motors for any liability the corporation might have suffered as a result of the lot's use by the railroad's crew. Furthermore, although several routes existed between the parking lot and the work shanty, each required the employee to cross General Motors' property.
The FELA imposes upon the employer a non-delegable duty to use reasonable care to furnish his employees a safe place to work, Sano v. Pennsylvania R.R. Co., 282 F.2d 936 (3 Cir. 1960), and this duty extends beyond its premises and to property which third persons have a primary obligation to maintain. Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963); Nivens v. St. Louis Southwestern Ry. Co., 425 F.2d 114 (5 Cir. 1970), cert. denied, 400 U.S. 879, 91 S. Ct. 121, 27 L. Ed. 2d 116 (1970); Payne v. Baltimore & Ohio R.R., 309 F.2d 546 (6 Cir. 1962), cert. denied, 374 U.S. 827, 83 S. Ct. 1865, 10 L. Ed. 2d 1051 (1963); Kooker v. Pittsburgh & Lake Erie R.R., 258 F.2d 876 (6 Cir. 1958); Chicago Great Western Ry. v. Casura, 234 F.2d 441 (8 Cir. 1956). This duty includes a responsibility to inspect the third party's property for hazards and to take precautions to protect the employee from possible defects, and is separate and distinct from any negligence that may be attributable to General Motors. Shenker v. Baltimore & Ohio R.R., supra; Nivens v. St. Louis Southwestern Ry., supra. In Kooker v. Pittsburgh & Lake Erie R.R., supra, the Court held that the railroad could be held to have breached its duty to provide a safe place to work where its employee was injured while walking from a parking lot to his job site, despite the fact that he may have been on property of a third person.
A second theory also supports a finding of liability against the railroad. In Carney v. Pittsburgh & Lake Erie R.R., 316 F.2d 277 (3 Cir. 1963), cert. denied, 375 U.S. 814, 84 S. Ct. 45, 11 L. Ed. 2d 49 (1963), this Court held a railroad liable for injuries sustained in a Y.M.C.A. because the railroad arranged for its employees to stay at the "Y" and such was "part of the operational activities of the railroad." See also Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958). The same must be said of the parking lot and adjacent area in the case sub judice. Its use was more than an accommodation and convenience to the employee. Its availability assured the railroad that its crew members would have a safe place to park their vehicles, a location near enough to allow the employees to arrive at work on time. Nor was the use of the parking lot and the adjacent General Motors' property an isolated occurrence. The railroad crew was on the premises for the exclusive purpose of servicing the General Motors plant at Curry-Hollow. Carter testified that he used the lot and followed the path in question every day for a three month period, as did other railroad employees. The arrangement between the railroad and General Motors providing for use by railroad employees of the corporation's property came within the operational activities of the railroad at the Curry-Hollow job site. Hopson v. Texaco, Inc., 383 U.S. 262, 86 S. Ct. 765, 15 L. Ed. 2d 740 (1966); Leek v. Baltimore & Ohio R.R., 200 F. ...