Ganey and Adams, Circuit Judges, and Weis, District Judge.
In 1956 Justice Frankfurter described the Federal Employers' Liability Act as "an archaic system of compensation for injuries to railroad employees."*fn1 This appeal deals with a case brought under the provisions of that act. The slow progress of the litigation through the courts, its unnecessarily lengthy trial and evidentiary errors which require a partial new trial might be considered as arguments in support of the Justice's criticism of fifteen years ago.
The appellee Fuhrman, an employee of the Reading Railroad, was injured in 1963 as a result of being thrown from a boxcar by a severe impact which occurred when other cars of the defendant slammed into the train on which he was working, or so, at least, the jury could have found from the evidence produced at the trial. The fact of the impact was established rather clearly but its source to a great extent rested upon inference.
At the time of the accident the plaintiff was carrying out preliminary procedures so that a locomotive could remove a string of cars from one of a series of assembling tracks in the yard at East Penn Junction, Allentown, Pennsylvania. The cars had been collected on these tracks by allowing them to coast downgrade from west to east and were then kept in position by the brakes on several of the head or easternmost cars of each string.
Fuhrman had been assigned to work with a crew in the eastern part of the yard and there was some testimony of the practice to have another crew at work in the western end of the yard.
The plaintiff was working under the orders of the conductor who testified that he had been told by the yardmaster to get the cars, that they were ready to be taken to another yard farther to the east. The plaintiff was led to believe that the cars were "all in" on the storage track, meaning, as he said, "that there is no other cars going in on that track * * * it's safe to go in there and get them, and there will be no more cars throwed in there against you."
It was about 9:00 P.M. and the darkness and a curve in the track to the west prevented the crew from seeing the last cars of the train. While the plaintiff was releasing the brake on one of the boxcars near the engine, there was an impact from the west end of the train, moving the cars and the engine about half a car's length to the east. It was a "hard bump" as the conductor described it and as to its source he said, "We knew something had hit down the other end." While Fuhrman could not say what caused the blow, he testified, "The only thing I can say would be the impact from the other cars against the draft of cars I was working on."
Plaintiff's proof of how the accident happened is far from overwhelming but the record contains enough facts from which the jury might conclude that the Railroad had supplied an unsafe place to work; that the most logical explanation of the occurrence -- indeed almost the only one -- was that employees of the defendant in the western end of the yard routed additional cars onto the track on which Fuhrman was working, contrary to his expectations and company policy.
The Supreme Court has outlined the area of the jury's responsibility in this type of case in the following language:
"* * * and for practical purposes the inquiry in these cases today rarely presents more than a single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial from which the jury may with reason make that inference."*fn2
On another occasion the Court said:
"It is no answer to say that the jury's verdict involves speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a ...