THORNTON, District Judge.
This is a Federal Employers’ Liability Act case in which defendant, The Baltimore and Ohio Railroad Company, appeals from a verdict and judgment against it in the amount of $136,267.23, plus costs. Plaintiff is the administra-trix of the estate of Ralph T. Payne whose death was caused by the accident which is the subject matter of this case.
The four questions involved in this appeal, as stated by defendant, fall into two categories. Questions I, III and IV relate to two specific instructions given to the jury by the District Judge and to one specific instruction which the District Judge refused to give. Question II relates to defendant’s contention that the negligence of the industry was not imputable to defendant, and that therefore there was not sufficient evidence to take the case to the jury on the question of its own independent negligence. Plaintiff accepts defendant’s statement of the questions on appeal as framed by defendant with the exception of III which plaintiff contends does not state any issue actually in the case. We will refer more specifically to the four questions shortly.
At the time of the accident Payne was a freight brakeman employed by defend[548]*548ant. At daybreak on July 2, 1959 the boxcar on which Payne was riding derailed and collided with the wall of an adjacent factory building. Payne was pinned between the wall and the boxcar and was killed instantly. The cause of the derailing is the pivotal point of this case — not as to what the cause was, but as to whose fault it was that the said cause was permitted to exist. The derailing of the boxcar was caused by its backing over a large accumulation of ashes, the ashes having been placed on a private spur track by the owner of the track. The track is one of two private spur tracks used for delivering freight to Standard Ultramarine & Color Co., a manufacturer of chemicals and dyestuffs in Huntington, West Virginia.. This company has been referred'to as “SUCO” and we will continue to refer to it by such name. The two private spur tracks are known as Track No. 2 and Track No. 3. They are joined together by a switch located just outside the gate of SUCO’s property. Track No. 3 is the track on which defendant’s boxcar was traveling when it became derailed by the ash accumulation. The accident occurred on the premises of SUCO. The boxcar was part of defendant’s train being operated by defendant. The ash accumulation existed because of the usual custom of SUCO to collect its ash disposal by dump truck from the ash silo located (on stilts 12 to 14 feet above the track) directly over Track No. 3. This operation resulted in spilled ash accumulating on the track. SUCO undertook to keep the track cleared of the spilled ash but, according to the testimony of its employees, Lynd and Romine, the sweeping and washing to get rid of spilled ash was directed to the rail area itself, and the accumulation between the rails was left to be washed away by rain. The ash might thus become crowned higher than the rails and could also get onto the rails by a rain washing it there. There is testimony by Romine indicating that it did rain during the night preceding the accident.
The defendant had an agreement with SUCO regarding the spur track. The defendant was allowed to use it for railroad purposes free of charge. SUCO was not allowed to authorize any other party to use the track without permission by defendant. It was also part of the agreement that SUCO had the duty to maintain the track. Defendant, on this appeal, contends that the District Judge erred in instructing the jury that under the circumstances present it was required to impute the admitted negligence of SUCO to defendant, even though defendant might itself be free of independent negligence. This is question I on this appeal.
Question II goes to the sufficiency of the evidence to go to the jury on the question of defendant’s independent negligence if, as a matter of law, the negligence of SUCO is not imputable to the defendant.
Question IV is based on defendant’s contention that an instruction should have been given to the jury as to the non-taxable nature of any award and as to the duty of the jury to in no way consider Federal income taxes in making an award.
As to question III, we think that our treatment of questions I and II will be dispositive of it.
As we view the law applicable to this situation, there are two tests by either of which the charge of the District Judge was proper. One test is that involving the duty of a railroad in the area of its own action or failure of action. The other test is the more encompassing one involving responsibility for the safety of a place where its employees are required to work. This latter calls into play the doctrine of imputable negligence which we view as being within the purview of the FELA. In applying these tests to the facts of this case it is necessary to bear in mind several well established principles. The Supreme Court has stated that the common law duty of an employer to use reasonable [549]*549care in furnishing his employees with a safe place to work obtains under the FELA. Bailey v. Central Vermont Railway, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). About this there can be no dispute. See Sano v. Pennsylvania Railroad Company, 282 F.2d 936, 937 (3 Cir., 1960), and cases cited; Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8 Cir., 1956), and cases cited. What constitutes reasonableness will depend upon the dangers inherent in the particular business of the employer. Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967 (1943); Bailey v. Central Vermont Railway, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). A railroad has the nondelegable duty to provide an employee with a safe place to work. This is so despite the fact that it may not own, control or be under a primary obligation to maintain the premises on which the employee is injured. A railroad is not relieved from liability because such premises are unsafe or because of the existence of an unsafe condition brought about through the act of another and without fault, on the railroad’s part. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958); Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8 Cir., 1956); Kennedy v. Pennsylvania Railroad Company, 169 F.Supp. 406, 410 (W.D.Pa., 1959).
When defendant sent a boxcar on which Payne was properly riding onto a spur track containing a pile of ashes sufficiently high to causé derailment defendant abdicated its legal duty to its employee. The fact that the spur track was on property not owned by defendant cannot alter the duty of the defendant, as is abundantly clear from the cases cited in the above paragraph. See also the dissenting opinion of Judge Kalodner in Shenker v. The Baltimore and Ohio Railroad Company, 303 F.2d 596 (3 Cir., 1962).
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THORNTON, District Judge.
This is a Federal Employers’ Liability Act case in which defendant, The Baltimore and Ohio Railroad Company, appeals from a verdict and judgment against it in the amount of $136,267.23, plus costs. Plaintiff is the administra-trix of the estate of Ralph T. Payne whose death was caused by the accident which is the subject matter of this case.
The four questions involved in this appeal, as stated by defendant, fall into two categories. Questions I, III and IV relate to two specific instructions given to the jury by the District Judge and to one specific instruction which the District Judge refused to give. Question II relates to defendant’s contention that the negligence of the industry was not imputable to defendant, and that therefore there was not sufficient evidence to take the case to the jury on the question of its own independent negligence. Plaintiff accepts defendant’s statement of the questions on appeal as framed by defendant with the exception of III which plaintiff contends does not state any issue actually in the case. We will refer more specifically to the four questions shortly.
At the time of the accident Payne was a freight brakeman employed by defend[548]*548ant. At daybreak on July 2, 1959 the boxcar on which Payne was riding derailed and collided with the wall of an adjacent factory building. Payne was pinned between the wall and the boxcar and was killed instantly. The cause of the derailing is the pivotal point of this case — not as to what the cause was, but as to whose fault it was that the said cause was permitted to exist. The derailing of the boxcar was caused by its backing over a large accumulation of ashes, the ashes having been placed on a private spur track by the owner of the track. The track is one of two private spur tracks used for delivering freight to Standard Ultramarine & Color Co., a manufacturer of chemicals and dyestuffs in Huntington, West Virginia.. This company has been referred'to as “SUCO” and we will continue to refer to it by such name. The two private spur tracks are known as Track No. 2 and Track No. 3. They are joined together by a switch located just outside the gate of SUCO’s property. Track No. 3 is the track on which defendant’s boxcar was traveling when it became derailed by the ash accumulation. The accident occurred on the premises of SUCO. The boxcar was part of defendant’s train being operated by defendant. The ash accumulation existed because of the usual custom of SUCO to collect its ash disposal by dump truck from the ash silo located (on stilts 12 to 14 feet above the track) directly over Track No. 3. This operation resulted in spilled ash accumulating on the track. SUCO undertook to keep the track cleared of the spilled ash but, according to the testimony of its employees, Lynd and Romine, the sweeping and washing to get rid of spilled ash was directed to the rail area itself, and the accumulation between the rails was left to be washed away by rain. The ash might thus become crowned higher than the rails and could also get onto the rails by a rain washing it there. There is testimony by Romine indicating that it did rain during the night preceding the accident.
The defendant had an agreement with SUCO regarding the spur track. The defendant was allowed to use it for railroad purposes free of charge. SUCO was not allowed to authorize any other party to use the track without permission by defendant. It was also part of the agreement that SUCO had the duty to maintain the track. Defendant, on this appeal, contends that the District Judge erred in instructing the jury that under the circumstances present it was required to impute the admitted negligence of SUCO to defendant, even though defendant might itself be free of independent negligence. This is question I on this appeal.
Question II goes to the sufficiency of the evidence to go to the jury on the question of defendant’s independent negligence if, as a matter of law, the negligence of SUCO is not imputable to the defendant.
Question IV is based on defendant’s contention that an instruction should have been given to the jury as to the non-taxable nature of any award and as to the duty of the jury to in no way consider Federal income taxes in making an award.
As to question III, we think that our treatment of questions I and II will be dispositive of it.
As we view the law applicable to this situation, there are two tests by either of which the charge of the District Judge was proper. One test is that involving the duty of a railroad in the area of its own action or failure of action. The other test is the more encompassing one involving responsibility for the safety of a place where its employees are required to work. This latter calls into play the doctrine of imputable negligence which we view as being within the purview of the FELA. In applying these tests to the facts of this case it is necessary to bear in mind several well established principles. The Supreme Court has stated that the common law duty of an employer to use reasonable [549]*549care in furnishing his employees with a safe place to work obtains under the FELA. Bailey v. Central Vermont Railway, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). About this there can be no dispute. See Sano v. Pennsylvania Railroad Company, 282 F.2d 936, 937 (3 Cir., 1960), and cases cited; Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8 Cir., 1956), and cases cited. What constitutes reasonableness will depend upon the dangers inherent in the particular business of the employer. Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967 (1943); Bailey v. Central Vermont Railway, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). A railroad has the nondelegable duty to provide an employee with a safe place to work. This is so despite the fact that it may not own, control or be under a primary obligation to maintain the premises on which the employee is injured. A railroad is not relieved from liability because such premises are unsafe or because of the existence of an unsafe condition brought about through the act of another and without fault, on the railroad’s part. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958); Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8 Cir., 1956); Kennedy v. Pennsylvania Railroad Company, 169 F.Supp. 406, 410 (W.D.Pa., 1959).
When defendant sent a boxcar on which Payne was properly riding onto a spur track containing a pile of ashes sufficiently high to causé derailment defendant abdicated its legal duty to its employee. The fact that the spur track was on property not owned by defendant cannot alter the duty of the defendant, as is abundantly clear from the cases cited in the above paragraph. See also the dissenting opinion of Judge Kalodner in Shenker v. The Baltimore and Ohio Railroad Company, 303 F.2d 596 (3 Cir., 1962). Can the existence of a contract between defendant and SUCO have the effect of relieving defendant from this duty? Can defendant successfully maintain that since it was the duty of SUCO under the terms of the contract to maintain the spur track that SUCO’s negligence in failing to properly maintain it is not imputable to defendant? We think not.
Defendant owed a duty to decedent Payne. The jury was properly charged by the District Judge. If the jury found liability by virtue of defendant’s independent negligence in sending the boxcar on a track having a dangerous condition present which could have been foreseen, the verdict is sound. If it found liability by virtue of imputing the negligence of SUCO to defendant, based on defendant’s non-delegable duty regarding safety for its employees, the verdict is sound. Regardless of the rights between themselves, of defendant and of SUCO, defendant may not legally delegate to another its duty to its employee, and thereby escape liability to such employee. This is the basis for the FELA. If defendant does delegate and relies upon the services of its agent to carry out its own duty, it may not shift its liability from itself to said agent when an employee seeks to hold it directly liable. Under FELA the employer is the one owing the duty to the employee. The employee need not look elsewhere for his protection. He has a right under FELA to rely on his employer and none other. When the employer delegates its duty, or abdicates its control, the employer takes the risk, not the employee. There is ample basis in the record to sustain the jury’s finding of liability regardless of which of the two theories it may have proceeded under, that of independent negligence or that of imputed negligence. The above adequately disposes of the first three questions involved in this appeal.
The remaining question concerns the requested and refused instruction to the effect that any award to plaintiff would not be income to her for Federal income tax purposes, that the jury should not add to nor subtract from any [550]*550award on account of Federal income taxes. The case of New York Central v. De-lich, 252 F.2d 522 (6 Cir., 1958) is one in which this Court specifically held that refusal to give such a charge was not error. We are not persuaded that any of the cases cited and discussed by appellant in its briefs stands for a contrary holding. The failure to give the charge does not constitute reversible error.
There being no reversible error, the judgment of the District Court is affirmed.