tried to the court without jury. At the time of the accident plaintiff was engaged in his employment for the defendant, a common carrier of freight for hire by rail engaged in interstate commerce. The court has jurisdiction under the above act.
On June 1, 1971, the plaintiff was working for the defendant as a yard brakeman on the third shift in the defendant's yard at Ashtabula, Ohio. At that time he was engaged in switching operations in the defendant's Harbor Yard at a location where empty coal gondola cars were shunted by gravity after being unloaded at a mechanical dumper. After leaving the dumper the cars passed down a decline and were automatically classified and switched onto one of eight parallel assembly tracks. The plaintiff with his fellow workers had finished the coupling of the assembled gondolas on switch track No. 5, and then the plaintiff proceeded alone to the north end of switch tracks No. 1 and 2. The plaintiff's assignment was to see that the empty cars standing on track No. 2 were properly coupled so that they could be removed from the track. There were about twenty-five cars standing on track No. 2 which was on plaintiff's left side as he proceeded between tracks 1 and 2 in a southwardly direction. On track 1 which was on his right side there were three empty gondola cars near the north end of that track which had been "anchored" so that additional empty cars could be shunted onto this track by gravity and effect a coupling by coming into contact with the "anchored" cars whose brakes had been set. As plaintiff was proceeding southwardly inspecting the cars on track No. 2 for couplings, he came to a point opposite the southernmost end of the three anchored cars on track No. 1 and turned to examine the coupling between the cars at this point. At this time additional empty cars were moving in on track No. 1. As plaintiff was examining the coupling he heard a crash and something struck him on the right side of his head. The plaintiff was dazed for short period, sank to his knees, and then looked around in an effort to determine what hit him. Plaintiff could see pieces of coal and pieces of metal on the ground in the area but he could identify nothing which had struck him at the time. Plaintiff then proceeded along the tracks to the retarder shed where he found fellow employees who took him to a first aid station.
The plaintiff's complaint makes no specification of the particular negligence with which the railroad is charged. In fact, the plaintiff's complaint does not allege any negligence on the part of the railroad. The plaintiff's pretrial narrative statement, required by the rules of this court, alleges specifically that the defendant failed to provide plaintiff with a reasonably safe place in which to work, that the equipment being utilized on No. 1 track was not in reasonably safe condition and that the defendant failed to warn the plaintiff of the movements being made on No. 1 track. The pretrial statement, in addition, contends that the doctrine of res ipsa loquitur applies, since the instrumentalities in operation around the plaintiff were owned and under the control of the defendant, and that an inference of negligence arises from the circumstances of the accident. At trial the plaintiff did not attempt to prove any specific negligence but relies on his testimony that the gondola cars, after being emptied at the dumper, frequently contained loose pieces of coal which are jarred loose in the coupling operation. Plaintiff further relies on the evidence that an empty car was in fact moving on No. 1 track at the time and collided with the "anchored" car at the same moment that he felt the blow on the head.
There is no doubt but that plaintiff suffered an injury at work. This is not contested by the defendant railroad. He was taken to the emergency room of a local hospital where a bandage was applied to the laceration of the scalp and an anti-tetanus injection was given. He then returned to his place of work where he remained until the end of the shift. His only attempt to secure medical relief from any symptoms that he may have suffered was a visit to his family doctor three days later where the wound was examined and he was instructed to take Excedrin (a proprietary non-prescription aspirin compound) for any discomfort. He was examined by an orthopedic physician on July 9, 1971 on behalf of plaintiff's counsel who secured a report that the plaintiff had suffered a cervical sprain and the prognosis for recovery was excellent. He did not return to work but in September 1971 re-entered Kent State University for the fall quarter, lasting until December 1971.
Liability for injuries to an employee under the Federal Employers Liability Act must be based upon a finding of negligence by the employer.
"The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury." (p. 653, 67 S. Ct. p. 600)
Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572 .