Stone v. New York, Chicago & St. Louis Railroad

344 U.S. 407, 73 S. Ct. 358, 97 L. Ed. 2d 441, 1953 U.S. LEXIS 2424

• Court: Supreme Court of the United States
• Decided: March 9, 1953
• Docket: 320
• Status: Published

Opinions

Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner was a member of one of respondent’s section crews and while in the course of his employment severely injured his back. He brought this action for damages in the Missouri courts under the Federal Employers’ Liability Act, 35 Stat. 65, 36 Stat. 291, 53 Stat. 1404, 45 U. S. C. § 51 et seq. There was a jury trial and a verdict for petitioner. The Missouri Supreme Court reversed, holding that plaintiff had not made out a sub-missible case either as to negligence or as to causation. 249 S. W. 2d 442. The case is here on certiorari. 344 U. S. 863.

At the time of the injury petitioner was removing old or worn track ties. The rails would be jacked up, the spikes that held the rails pulled, the plates removed, and the tie pulled. The ties were usually pulled with tongs by two men. If there were any old spikes protruding downward from the tie into the ground, three or four men would usually be required to pull the tie.

There were three other ways to remove a stubborn tie. One was to dig a trench beside the tie and then roll the tie into the trench. Another method was to jack the rail up high enough so the tie would come free. The objection to that method was that the ballast would run under the other ties and produce a hump in the track. Another way was to free the rail from the ties a half-rail length on each side of the tie to be removed and then to jack the rail up, freeing the tie sufficiently so that it could easily be moved. This method had disadvantages on a track as active as this one in that it meant putting up a flag and stopping trains.

This day Stoughton, the straw boss, used only the first method. Petitioner and one Fish together were unable to remove a tie because, as it turned out, a spike was driven through it into the ground. Stoughton told petitioner he was not pulling hard enough. Stoughton put a bar under the far end of the tie while petitioner and Fish pulled again. Still the tie would not come. Stough-ton told petitioner to pull harder. Petitioner said he was pulling as hard as he could. Stoughton then said, “If you can’t pull any harder I will get somebody that will.” So petitioner, with Fish, gave a hard pull and hurt his back. The tie was finally pulled by four men— two pulling, one prying with a crowbar, one hammering with a maul; and it turned out that the tie had a spike driven through it and extending into the ground.

We think the case was peculiarly one for the jury. The standard of liability is negligence. The question is what a reasonable and prudent person would have done under the circumstances. Wilkerson v. McCarthy, 336 U. S. 53, 61. The straw boss had additional men to put on the tongs. He also had three alternative methods for removing stubborn ties. This was not the first difficult tie encountered by the section crew in this stretch of track. The likelihood of injury to men pulling or lifting beyond their capacity is obvious. Whether the straw boss in light of the risks should have used another or different method to remove the tie or failing to do so was culpable is the issue. To us it appears to be a debatable issue on which fair-minded men would differ. Cf. Bailey v. Central Vermont R. Co., 319 U. S. 350, 353; Urie v. Thompson, 337 U. S. 163, 178. The experience with stubborn ties, the alternative ways of removing them, the warning by petitioner that he had been pulling as hard as he could, the command of his superior to pull harder, the fact that more than two men were usually used in these circumstances — all these facts comprise the situation to be appraised in determining whether respondent was negligent. Those circumstances were for the trier of facts to appraise. Cf. Blair v. B. & O. R. Co., 323 U. S. 600, 604. The fact that the employee, commanded to do the act that caused the injury, first protested does not place the risk of injury on him. Id., p. 605. We think there was evidence of a causal connection between the order of Stoughton to pull harder and petitioner’s back injury. The fact that fair-minded men might likewise reach different conclusions on this branch of the case emphasizes the appropriateness of also leaving it to the jury. Ellis v. Union Pacific R. Co., 329 ; Coray v. Southern Pacific Co., 335 U. S. 520, 523; Carter v. Atlanta & St. A. B. R. Co., 338 U. S. 430, 433.

Reversed.