Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
Plaintiff, a car repairman's helper in the employ of the defendant, Pennsylvania Railroad Company, brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.,*fn1 to recover damages for personal injuries sustained in the course of his employment in interstate commerce. The defendant appeals from a judgment for the plaintiff, contending that there is no evidence of negligence proximately causing the injuries.
The facts, presented in a light most favorable to the plaintiff, are as follows:
In July, 1948, plaintiff sustained an injury to his knee which required surgery in March, 1949, as a result of which he was disabled until October, 1949. From 1914 to 1949 he had a mechanic's rating, but when he returned to work in October, 1949, he voluntarily took a lower rating (helper) at lesser pay, because of the injury to his left knee which would cramp when in a kneeling position. The Company had notice of his disability. On October 24, 1949, plaintiff was ordered to assist a fellow employee in a box car equipped with racks. He had never worked in such a car before, and was given no instructions. The car had doors on both sides, and racks where auto parts were stored on both ends of the car, beyond the doors. These racks extended from four and one-half feet above floor level to the top of the car, making it impossible for a man of normal height to stand under them. Plaintiff, upon entering the car, crawled about eight feet to reach the other employee. There was no artificial light in the car, but there was natural light coming in through the open doors. By Company order, plaintiff had to wear goggles while in the car.
Plaintiff was working on the floor of the car, beneath the racks. He was down on his right knee, and had his left leg extended because he was unable to kneel on it. After about ten minutes in that position his left knee became cramped and painful, and being unable to stand up under the racks, he started to back out a distance of about eight feet, still having on his goggles. He thought he was clear of the racks and stood up. Unfortunately, however, he was not clear of the racks, and when he stood up he bumped his head against a metal part, suffering serious permanent injuries.
On these facts, the jury returned a verdict of $15,000, which the trial judge reduced to one-half because of the plaintiff's contributory negligence.
The question presented is whether the case should have gone to the jury, or whether, as a matter of law, it should have been determined that there was no legal proximate causation between the alleged negligence of the defendant in sending plaintiff into the car and the injury to him.
The Supreme Court, since its 1943 Term, has granted certiorari in an unusually large number of cases*fn2 arising under the Federal Employers' Liability Act, in an effort to articulate the basis of an employer's liability for negligence under the Act.
The Supreme Court has been particularly concerned with defining the respective functions of court and jury in relation to the power of the trial judge to withhold a case from the jury and the right of an appellate court to set aside a jury verdict.
We have reviewed all of those cases, and in certain respects the law enunciated therein by the Supreme Court is a modification of common-law principles. Generally, the Supreme Court has shown a disposition to allow cases to go to the jury where, at common law, a verdict would have been directed for the defendant.*fn3 But there are limitations. "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." Ellis v. Union Pacific Railroad Co., 1947, 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572. Tenant v. Peoria & Pekin Union Railway Co., 1944, 321 U.S. 29, 32, 64 S. Ct. 409, 88 L. Ed. 520; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S. Ct. 413, 93 L. Ed. 497; Reynolds v. Atlantic Coast Line, 1949, 336 U.S. 207, 69 S. Ct. 507, 93 L. Ed. 618; Lillie v. Thompson, 1947, 332 U.S. 459, 68 S. Ct. 140, 92 L. Ed. 73. As was said in Brady v. Southern Railway Co., 1943, 320 U.S. 476, 479, 480, 484, 64 S. Ct. 232, 234, 88 L. Ed. 239:
"The weight of the evidence under the * * * Act must be more than a scintilla before the case may be properly left to the discretion of * * * the jury. When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict the court should determine the proceeding by non-suit, directed verdict or otherwise * * *. The rule as to when a directed verdict is proper * * * is applicable to questions of proximate cause."
In the instant case, even assuming that the defendant was negligent, there was no causal connection between its negligence and the injury to the plaintiff. We are of the opinion that as a matter of law the case should not have been submitted to the jury.
The immediate cause of the accident was succinctly stated by the plaintiff at the trial and by his counsel in his ...