1. In this suit under the Federal Employers' Liability Act to
recover damages for personal injuries alleged to have resulted from
negligence of the employer in failing to provide adequate equipment
and sufficient competent help, and from negligence of fellow
servants, the evidence was sufficient to go to the jury on the
issue of negligence, and the issue should be determined by the
jury, and not by the court. P.
323 U. S.
604.
2. In determining whether there was negligence, the employer's
conduct may be viewed as a whole, especially where the several
elements from which negligence might be inferred are so closely
interwoven as to form a single pattern and where each imparts
character to the others. P.
323 U. S.
604.
Page 323 U. S. 601
3. Under the circumstances of this case, where the employee
recognized the danger in the manner of moving heavy pipe, but was
commanded to go ahead, he cannot be held to have assumed the risk.
P.
323 U. S.
605.
4. It is unnecessary in this case to consider whether the
amendment of the Employers' Liability Act which abolished the
defense of assumption of risk is applicable to causes of action
which arose prior to the effective date of the amendment. P.
323 U. S.
605.
349 Pa. 436, 37 A.2d 736, reversed.
Certiorari,
post, p. 688, to review a judgment which,
upon appeals from orders of the trial court, denied recovery in a
suit under the Federal Employers' Liability Act.
MR. JUSTICE BLACK delivered the opinion of the Court.
A jury in the Commission Pleas court of Allegheny County,
Pennsylvania, awarded the petitioner a verdict for $12,000 damages
for personal injuries in his action against the respondent railroad
under the Federal Employers' Liability Act, 45 U.S.C. § 51
et seq. That Act authorizes an employee to recover for
such injuries if they result
"in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence in its . . . appliances . . .
or other equipment."
The complaint set out in great detail the events leading to the
injury and alleged that the injury was the result of the
defendant's negligence in failing, under the circumstances
narrated, to provide petitioner with reasonable suitable tools and
appliances, a reasonably safe place in which to work, reasonably
sufficient and competent help to do the work, and the negligence of
the respondent's employees who assisted him in doing the work.
Respondent moved for judgment notwithstanding the verdict on the
ground
Page 323 U. S. 602
that there was no evidence to prove any negligence on its part.
This motion was denied. Although the trial judge thought the
verdict was "just and reasonable," respondent's motion for new
trial was granted on the ground that, while the testimony was
sufficient to support a finding that the negligence of respondent's
employees contributed to the injury, it was not sufficient to show
that the injury resulted from defendant's failure to provide
adequate equipment, or sufficient and competent help. Both parties
appealed to the Pennsylvania Supreme Court, which reversed, holding
that petitioner had assumed the risk of injury by remaining in the
employment, and that there was no evidence to support negligence in
any respect. 349 Pa. 436, 37 A.2d 736.
To deprive railroad "workers of the benefit of a jury trial in
close or doubtful cases is to take away a goodly portion of the
relief which Congress has afforded them."
Bailey v. Central
Vermont R., 319 U. S. 350,
319 U. S. 354.
Because important rights under the Act were involved, we granted
certiorari. 323 U.S. 688.
Despite conflicting evidence, there was sufficient evidence to
justify the jury in finding that the injury was inflicted under
these circumstances. Petitioner's duties were to load and unload
inbound and outbound freight. In unloading a car standing at the
platform adjacent to respondent's warehouse, petitioner came to
three 10-inch seamless steel tubes, approximately thirty feet long
and weighing slightly more than a thousand pounds each. The pipes
were greased and slick. The petitioner went to his superior,
informed him that the pipes were too heavy for him to move, and
suggested that it was not customary for the railroad to unload
pipes of this kind at its warehouse, but to send the car directly
to the consignee's place of business, where it had proper equipment
for unloading heavy material. This suggestion was rejected, and
petitioner was then told to get Mr. Miller, the car inspector, and
Mr. Fanno, the section man, to help him unload.
Page 323 U. S. 603
Petitioner's insistence that the three could not unload the
heavy pipes was overridden, and he was then told to go ahead and do
the work or they "would get somebody else that would." Under these
circumstances, petitioner undertook to unload the pipes and carry
them through the warehouse to place in the consignee's truck, which
had backed up to the warehouse platform on the opposite side from
the railroad car. The best equipment available for moving the pipes
was a "nose truck" of the kind commonly used in railroad stations
to move freight and luggage. It was about five feet long and two
feet high, consisting of a flat metal frame, within an upright
flange and two wheels at one end and wheelbarrow handles at the
other. The problem was to balance three greased, 1000-pound,
30-foot steel tubes on this truck, move them across two platforms
through the warehouse, and place them in the consignee's truck. The
men took the nose truck into the car, managed to get the first pipe
lengthwise on it, worked it through the car door to the platform
over a steel bridge connecting the car and the platform, and then
carried it to the waiting truck. Petitioner held one handle of the
nose truck with one hand and the steel tube with the other. Miller
occupied the same position as to the other handle and the pipe.
Fanno held the pipe and the truck at its wheel end. They were all
necessarily crouching, since the truck was only two feet high when
moved in a level position, as it had to be to keep the tube from
slipping off. The first tube was successfully moved. While they
were attempting to move the second tube in the same manner, it
slipped. Fanno and Miller released their holds, but petitioner did
not. The heavy tube, in slipping, caused the truck to kick back,
resulting in petitioner's injury.
In the petitioner's four-year service, this was the first
occasion that such heavy pipe had been moved at the warehouse.
Fanno, aged 60, and Miller, aged 68, had never before assisted
petitioner in such a movement; their duties were entirely
different. The evidence indicated
Page 323 U. S. 604
that the immediate cause of the greasy pipe's slipping as it did
was either (1) an uneven place on the warehouse floor due to its
having sunken in, or (2) pushing the nose truck against the
standing company truck with such force as to make the tube move
with great suddenness. The fact that Fanno and Miller released
their grips after it began to slip also contributed to the
suddenness and force of the kickback of the nose truck which caused
the petitioner's injury.
We think there was sufficient evidence to submit to the jury the
question of negligence posed by the complaint. The duty of the
employer "becomes
more imperative' as the risk increases."
Bailey v. Central Vermont R. Co., 319 U.
S. 350, 319 U. S.
352-353. See also Tiller v. Atlantic Coast Line R.
Co., 318 U. S. 54,
318 U. S. 67.
The negligence of the employer may be determined by viewing its
conduct as a whole. Union Pacific Railroad Co. v. Hadley,
246 U. S. 330,
246 U. S.
332-333. And especially is this true in a case such as
this, where the several elements from which negligence might be
inferred are so closely interwoven as to form a single pattern, and
where each imparts character to the others.
The nature of the duty which the petitioner was commanded to
undertake, the dangers of moving a greased, 1,000-pound steel tube,
30 feet in length, on a 5-foot truck, the area over which that
truck was compelled to be moved, the suitableness of the tools used
in an extraordinary manner to accomplish a novel purpose, the
number of men assigned to assist him, their experience in such
work, and their ability to perform the duties and the manner in
which they performed those duties -- all of these raised questions
appropriate for a jury to appraise in considering whether or not
the injury was the result of negligence as alleged in the
complaint. We cannot say as a matter of law that the railroad
complied with its duties in a reasonably careful manner under the
circumstances here, nor
Page 323 U. S. 605
that the conduct which the jury might have found to be negligent
did not contribute to petitioner's injury "in whole or in part."
Consequently we think the jury, and not the court, should finally
determine these issues.
The court below, however, thought that the plaintiff should not
recover, because he had assumed the risk of this danger. It is to
be noted that, at the time this case was tried, Congress had passed
an act which completely abolished the defense of assumption of
risk. 53 Stat. 1404.
Tiller v. Atlantic Coast Line R. Co.,
supra. We need not consider whether this statute applies to
this case, since we are of opinion that it cannot be held as a
matter of law that the petitioner assumed the risks incident to
moving the steel tubes.
It is true that the petitioner undertook to do the work after he
had complained to the company that the pipe should not be moved in
the manner it was. But he was commanded to go ahead by his
superior. Under these circumstances, it cannot be held as a matter
of law that he voluntarily assumed all the risks of injury. The
court below cited by way of comparison its holding in a former
decision,
Guerierro v. Reading Co., 346 Pa. 187, 29 A.2d
510. There, it had announced the rule that an employee has a duty
to quit his job rather than to do something which he knows, or
ought to know, is dangerous. This Court does not apply the doctrine
of assumption of risk so rigorously. In
Great Northern Railroad
Co. v. Leonidas, 305 U. S. 1, we
affirmed the judgment of the Supreme Court of Montana, 105 Mont.
302, 72 P.2d 1007, 1011. In its opinion, the Montana court
stated:
"We are not able to say that the hazard of carrying the
[railroad] tie was so open and obvious that the plaintiff, as a
matter of law, must be held to have assumed the risk of injury by
yielding obedience to the command of the foreman."
So here, we do not think that this petitioner can be held to
have assumed
Page 323 U. S. 606
the risk by obeying the command of his employer's foreman to go
on with his job. The judgment of the Supreme Court of Pennsylvania
is reversed and remanded to that court for proceedings not
inconsistent with this opinion.
Reversed.
THE CHIEF JUSTICE and MR. JUSTICE ROBERTS are of the opinion
that the judgment should be affirmed.