Patrick H. Shea v. The New York, New Haven and Hartford Railroad Company, 316 F.2d 838, 1st Cir. (1963)

316 F.
2d 838
Patrick H. SHEA, Plaintiff, Appellant,

v.
The NEW YORK, NEW HAVEN AND HARTFORD
RAILROAD COMPANY, Defendant, Appellee.
No. 6076.
United States Court of Appeals First Circuit.

May 8, 1963.
Bernard Kaplan, Malden, Mass., with whom Meyer, Lasch, Hankin &
Poul, Philadelphia, Pa., was on the brief, for appellant.
William J. Noonan, with whom Noel W. Deering and David W. Walsh,
Boston, Mass., were on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH,
Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the
District of Massachusetts directing a verdict for the defendant-appellee in an
action under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq.
The events at issue took place on July 15, 1958. For a number of years prior to
this date the defendant owned and maintained an auction room (for lost or
damaged property) in a large shed surrounded by a fenced in parking area on
Forsyth Street in Boston, Massachusetts. The entrance to the area was through a
gate on Forsyth Street. A roadway ran parallel to railroad tracks to the left and
to the rear of the parking area, which widened as one approached the auction
room approximately 600 to 700 yards from the entrance. There was another
gate at the rear of this area behind the auction room. For some time prior to
July 15, 1958 this gate had been kept locked on days on which the auctions
were held.1
The testimony was to the effect that on auction days, patrons would begin
The testimony was to the effect that on auction days, patrons would begin
arriving by motor vehicle about 9 a. m. and would gradually fill the area in
front and to the rear of the auction room by 9:50 a. m. On the average auction
day some 100 to 150 automobiles and trucks would be parked in the parking
area.
On July 15, 1958 the plaintiff, who had been for some years employed as a
railroad patrolman, was assigned to control traffic and supervise the parking of
vehicles which had come into the area for the auction. This had been his
assignment "off and on" for approximately four years.
Shortly after 9 a. m. the plaintiff observed the automobile of one Goldstein,

which was parked unattended at the doorway to the auction room. Plaintiff had
not observed this vehicle arriving but was familiar with it and knew that it
belonged to Goldstein. Upon noticing this vehicle the plaintiff went into the
auction room and asked Goldstein to move it into a parking space. Goldstein
said that he would "be right out" and with that, plaintiff returned to his position
of directing traffic. Goldstein followed the plaintiff from the auction room and
proceeded to back his automobile into a parking area. However, in the course
of backing the vehicle, Goldstein struck the plaintiff, causing a fracture of
plaintiff's left leg.
The entire thrust of plaintiff's claim that defendant was negligent resides in his
contention that the defendant should have had additional patrolmen directing
traffic at the auction site, and in the logical corollary of this position that
additional personnel might have prevented the plaintiff being struck by
Goldstein's automobile.
At the close of the plaintiff's case, the defendant filed a motion for a directed
verdict, which was allowed by the district judge on the ground that there was
insufficient evidence to warrant a finding that defendant was negligent or that
any acts or omissions of the defendant caused the plaintiff's injuries.
In a memorandum in support of the order allowing the motion, the court found
that no standard of care was established; that there was no causal connection
shown between the absence of additional patrolmen (directing traffic) and the
plaintiff's injury; that it was sheer speculation that the presence of additional
traffic officers would have prevented the injury to the plaintiff, and that the
plaintiff's injury was caused solely by the concurrence of his own negligence
and that of Goldstein.
We believe that the action of the district judge was proper and that plaintiff did
not present sufficient evidence to take the case to the jury.
10
As the Supreme Court has stated: "Under this statute the test of a jury case is
simply whether the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing the injury or death
for which damages are sought." Rogers v. Missouri Pacific R. Co., 352 U.S.
500, 506, 77 S.Ct. 443, 448, 1 L.Ed. 2d 493 (1957).
11
While it is true that in applying this statutory standard, the Supreme Court has
allowed juries a liberal latitude in deciding whether particular facts make out
employer negligence, e. g., Ferguson v. Moore-McCormack Lines, 352 U.S.
521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957), nonetheless, other opinions of the
Court clearly indicate that there must still be a judicial appraisal as to the
sufficiency of evidence to support a jury verdict. See, e. g., Inman v. Baltimore
& Ohio R. Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Herdman v.
Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508 (1957).
12
Inman v. Baltimore & Ohio R. Co., supra, is particularly apposite. There the
petitioner, who had been employed as a railroad crossing watchman for some
seven years, brought an action under the Federal Employers' Liability Act after
being struck by a passing motorist while on the job. Petitioner's job involved a
host of specific duties in addition to that of controlling vehicular traffic and
it was his contention that these manifold duties created a likelihood of his being
struck by automobiles at the intersection and that the railroad "was negligent in
failing to use ordinary care to provide * * * a reasonable safe place to work" at
the crossing.
13
In upholding a decision of the Court of Appeals of Ohio which set aside a jury
verdict for the petitioner, 108 Ohio App. 124, 161 N.E.2d 60, the Supreme
Court stated that: "The Act (FELA) does not make the employer an insurer" * *
* and that "The burden of proving that the crossing was an unsafe place to work
was on petitioner."
14
In the instant case we cannot "with reason" state that plaintiff has carried this
burden. Plaintiff has failed to show the need of another patrolman; has failed to
show what his duties would be; has failed to show where in the parking area he
would be stationed; and has failed to show that if there were two patrolmen
assigned to direct traffic, the additional officer would likely have been in a
position to warn the plaintiff of the backing of the Goldstein car. Moreover, the
plaintiff knew that Goldstein was going to repark his car and, therefore did not
require any warning from anybody.
15
In short, we believe that there is a complete absence of any showing that the
procedure which the defendant followed in providing for traffic control at the
auction site failed to satisfy a reasonable standard in the light of the hazards to
its patrolman which it could reasonably expect. Webb v. Illinois Central R. Co.,
352 U.S. 512, 516, 77 S.Ct. 451, 1 L.Ed. 2d 503 (1957).
16
Plaintiff did attempt to show that on two occasions he had requested additional
help and that his requests were denied. This evidence was excluded by the trial
judge and the exclusion is cited here as prejudicial error. We believe that the
trial judge was within his discretion in excluding the evidence. There was no
showing that traffic conditions at the time of plaintiff's requests were the same
as those which obtained on the day of the accident. For one thing, on the day of
the accident the gate at the rear of the situs was closed. If both gates were
opened and there were dual ways of entrance and exit to the site, a request for
additional assistance might take on an added significance. However, more
fundamentally, in those cases in which courts have attached some significance
to prior employee complaints, the request for help if granted would have
directly and immediately ameliorated the situation which gave rise to the
injuries there at issue. Cf., Blair v. Baltimore & O. R. Co., 323 U.S. 600, 65
S.Ct. 545, 89 L.Ed. 490 (1944). In the instant case, the logical import of
granting a request for additional help vis a vis the injury herein sustained
would be so conjectural as to amount to but a guess in the dark.
17
Judgment will be entered affirming the judgment of the district court.
Notes:
1
Auctions were normally held each week on Tuesday at 10 a. m

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Patrick H. Shea v. The New York, New Haven and Hartford Railroad Company, 316 F.2d 838, 1st Cir. (1963)

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316 F.

Patrick H. SHEA, Plaintiff, Appellant,

United States Court of Appeals First Circuit.

Shortly after 9 a. m. the plaintiff observed the automobile of one Goldstein,

not present sufficient evidence to take the case to the jury.

Judgment will be entered affirming the judgment of the district court.

Auctions were normally held each week on Tuesday at 10 a. m

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