Decedent had for six months been employed by a railroad to
operate the draw and work the signals of its draw-bridge over a
stream. His decomposed body was found in the water two weeks from
the night on which he last worked and was last seen alive, but the
cause of death could not be learned by examination of the corpse.
There was evidence tending to show that iron steps, on the outside
of the bridge, which he was obliged to use in going to and from an
engine house high above the track, and an iron platform at their
base, were inadequately guarded, were worn smooth and, when
moisture accumulated, were slippery, and that, a few hours after
his disappearance, small pieces of wool, possibly from the
sheepskin collar of his coat, and a little spot that looked like
blood, were found on the edge of the platform. The proofs also
showed that he had long used the stairway and platform with ample
opportunity to learn of their defects by good lantern light and
early daylight, and there was no suggestion of any complaint's
having been made to the railroad.
Held:
1. There was nothing to show that, if the railroad was negligent
in respect of the stairway and platform, the negligence was the
proximate cause of the death. P.
290 U. S.
503.
2. Proof of negligence alone does not entitle the plaintiff to
recover under the Employers' Liability Act. The negligence must
cause the injury. If, on the evidence, the cause is a matter of
Page 290 U. S. 500
pure speculation, the case should be withdrawn from the jury. P.
290 U. S.
502.
3. The deceased assumed the risk. P.
290 U. S.
509.
129 Cal. App. 273, 19 P.2d 10, reversed.
Certiorari to review a judgment of the District Court of Appeal
of California sustaining a judgment for the plaintiff in a suit for
death by negligence. The Supreme Court of the state denied a
hearing.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Claiming under the Federal Employers' Liability Act, respondent
sued the petitioner in the Superior Court, Marin county,
California, for damages consequent upon the death of her husband,
Perry E. Bobo. She maintains that this was the proximate result of
the company's negligence while it employed him.
The complaint alleged:
That on February 4, 1930, the decedent, Bobo, was a tender of
the bridge at Grand View, California, a portion of petitioner's
road;
"it was part of said deceased's duties as such bridge tender to
uncouple the tracks and connections on said bridge, work the
semaphore signals and open and close the draw of said bridge; that.
in the course of the performance of said duties. said deceased was
required to go to the building on the top of said bridge for the
purpose of using the mechanism located in said building which was
necessary to be used in the opening and closing of said bridge and
to work the semaphore signals; that, on said last mentioned date,
it became the duty of said
Page 290 U. S. 501
deceased in the discharge of his duties as such bridge tender to
adjust the semaphore signals, and that, while returning from his
duties, he slipped upon the steps leading up to said building and
was precipitated into the waters of the Petaluma Creek, and came to
his death."
"That said defendant was careless and negligent in this, that it
failed to provide said deceased a safe place to do the work
required of him; that said bridge was installed in an improper
manner so as to render the same unsafe and dangerous; that the
steps leading to the building on the top of said bridge were
constructed, installed, used, and maintained by said defendant in
an improper, faulty, and defective manner so as to render them
unsafe and dangerous; that it failed to install proper guard rails
on said steps and the approaches thereto so as to protect persons
using said bridge and said steps; that it permitted said steps to
become uneven so that they sloped and permitted water to collect in
depressions on said steps on which said deceased slipped and
fell."
A jury found in favor of the respondent and assessed the damages
at $12,500. Judgment thereon was affirmed by the District Court of
Appeal. The Supreme Court refused to hear the cause, and it comes
here by certiorari.
The petitioner maintained that there was no evidence to show the
death resulted from its negligence, also that Bobo assumed the
risk, and asked for an instructed verdict. The trial court,
wrongly, we think, refused this request.
The evidence shows that the deceased began his service as bridge
tender in August, 1929, and continued until he disappeared February
4, 1930. His working hours were from 9 p.m. to 5 a.m. His duty was
to open the draw for the passage of boats, then close it, see that
the rails were properly aligned, and set the lights. The draw was
operated through an engine housed 26 feet above the
Page 290 U. S. 502
rails. When not actually engaged, Bobo ordinarily remained in a
shanty, near the end of the bridge. To reach or return from the
engine, he went up or down a flight of 35 iron steps which ran
along the outside of the bridge structure, pitched at 48 1/2
degrees to the horizontal. These steps were guarded by a single
rail on either side. They were 21 inches long and 8 inches wide. He
was furnished with a proper lantern to light the way.
February 3, 1930, at 9 o'clock, Bobo went to work. He was last
seen alive at 11 o'clock; an entry in the log book shows that he
opened the draw the next morning at 1:30. Two weeks thereafter, his
body, badly decomposed, was found in the water some distance from
the bridge. To determine the cause of death from an examination of
this was impossible.
When last seen, the deceased wore a coat with sheepskin collar.
A few hours after his disappearance, witnesses discovered on the
edge of the iron platform at the foot of the stairway what seemed
to be small pieces of wool; also a little spot which looked like
blood. Some of the steps and the platform had become smooth through
use during fifteen years or more. During the winter, dew often
accumulated on these during the night and caused them to become
quite slippery. Also witnesses stated the stairs and platform were
not adequately guarded -- the single rail was not enough, and was
placed too low.
Respondent's theory is that, while properly discharging his
duties, Bobo slipped, fell into the water, and drowned.
Our decisions clearly show that
"proof of negligence alone does not entitle the plaintiff to
recover under the Federal Employers' Liability Act. The negligence
complained of must be the cause of the injury. The jury may not be
permitted to speculate as to its cause, and the case must be
withdrawn from its consideration unless there is evidence from
which the inference may reasonably be
Page 290 U. S. 503
drawn that the injury suffered was caused by the negligent act
of the employer."
Atchison, T. & S.F. Ry. Co. v. Toops, 281 U.
S. 351,
281 U. S. 354;
Chicago, M. & St.P. R. Co. v. Coogan, 271 U.
S. 472;
Atchison, T. & S.F. Ry. Co. v.
Saxon, 284 U. S. 458.
If petitioner was negligent in respect of the stairway and
platform, there is nothing whatsoever to show that this was the
proximate cause of the unfortunate death. So to conclude would be
pure speculation, and, for reasons heretofore sufficiently
elaborated, judgments based upon verdicts so arrived at cannot be
permitted to stand.
Regarding the defense based upon assumption of the risk, the
District Court of Appeal said:
"Here, so far as shown, decedent had never ascended the stairway
during the daytime; nor was he aware of the conditions which made
the structure dangerous. The complaint described the defects which
were alleged to have caused the injury, and defendant contends that
these allegations show that the cause of death was a risk assumed
by decedent, and that consequently no cause of action was stated,
citing
Bresette v. E. B. & A. L. Stone Co., 162 Cal.
74, 121 P. 312; but, as pointed out, the evidence was insufficient
to show that decedent knew of the defects described, or that the
conditions under which he was employed were such that he must have
known them."
With this conclusion we cannot agree. The deceased had gone up
and down these open stairs very many times from August to February.
He had a proper lantern, by the light of which he could easily see
the alleged defects. He must have been aware that moisture
frequently accumulated. Also, often during the summer and early
autumn, there was adequate sunlight before 5 o'clock a.m. to
disclose the real conditions. No suggestion is made of any
complaint to the company concerning the stairs or platform.
Page 290 U. S. 504
We think the record discloses enough to show that the decedent
assumed any alleged risk.
Seaboard Air Line Ry. Co. v.
Horton, 233 U. S. 492;
New Orleans & N.E. R. Co. v. Harris, 247 U.
S. 367,
247 U. S. 371;
Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U. S.
44,
284 U. S.
46-47.
Reversed.