Lumbard, Chief Judge, and Waterman and Hays, Circuit Judges. Hays, Circuit Judge (dissenting).
Chief Judge Lumbard, who joins with me in this opinion, and I are both of the belief that the plaintiff failed to prove any negligence on the part of the defendant railroad that contributed in any way to the plaintiff's injury, and that the trial judge, after a jury verdict for the plaintiff, should have granted the railroad's motion for a directed verdict and for judgment notwithstanding the verdict.
Michael Kuberski, the plaintiff-appellee, had been employed by the defendant-appellant railroad since 1941 and had worked as a car inspector since 1942. One of the duties of a car inspector is to close all open doors of boxcars before a train leaves the yards. On August 24, 1960, the night of his injury, the plaintiff was inspecting a train known as the " Buffalo Extra" in the defendant's De-Witt yards. The jury could have found that this night this inspection had been delayed and some speed in carrying it out was required. Moreover, the train had been "humped," and it was likely that some of the boxcar doors would have been jarred open in this process. Plaintiff started on the south side of the train, his partner Barth started on the north side, and thus paired they proceeded to inspect each car, moving from east to west along the train. Two other inspectors were simultaneously inspecting other cars on the same track.
Barth and the plaintiff had in this manner inspected between twelve and fourteen cars when Barth called for assistance in closing an open boxcar door. The plaintiff responded to this call and began to climb over the coupler between the cars in order to reach the north side where he would be in a position to help Barth. The plaintiff testified that in thus climbing between the cars he used both hands to clutch "grab irons" and that consequently the hand torch he carried shone above his head and not on his potential footholds. He testified that he placed his left foot on an operating lever some three feet above the ground, then pulled himself up to put his right foot on top of the coupler, and then fell forward onto the ground on the north side of the train, injuring himself.*fn1 He testified he could not see where he was stepping and admitted he could not be sure whether he had tripped or slipped, and made no claim that he had done either. In fact, he candidly admitted he did not really know how his fall occurred.
As a consequence of this injury the plaintiff worked less than full time during the four years from the accident to the trial and lost approximately $2,000 a year in wages; he also incurred certain medical expenses, and there was testimony tending to prove that he suffered a permanent partial disability. Action was commenced in the Northern District of New York against the railroad, under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, to recover damages for these injuries. Trial was held before Judge Port and a jury in the latter part of September 1964 and resulted in a general verdict for plaintiff in the amount of $20,000. The defendant appealed, contending, inter alia, that the verdict should have been set aside and the complaint dismissed because the plaintiff failed to prove negligence on the part of the defendant. We agree, and reverse with instructions that judgment be entered for the defendant.
There is absolutely no evidence in the record tending to show that the operating lever on which the plaintiff stepped, or the coupler, or any other equipment, was defective. Indeed, plaintiff specifically states in his brief that he makes no claim that there was any defect in either the lever or the coupler. Moreover, the record is devoid of evidence tending to show that it was negligent of the defendant to allow car inspectors to perform their duties in a yard illuminated as was the DeWitt yard on the night plaintiff was injured, and in plaintiff's brief he states that it was no part of his claim that "darkness per se was the cause of his injury." No jury could have found that improper lighting was in any sense the cause of the injury, there being no evidence to support such a finding. In FELA cases a minimal scintilla of evidence may support a jury verdict, but we ought not to sustain verdicts that can only be based on speculation.
Undaunted by this lack of evidence of any negligence on the part of the carrier, the plaintiff argues there is sufficient evidence to support the jury's verdict on the theory that the railroad was negligent in failing to have a motor scooter supplied with door closing equipment accompany him and his partner as they carried out their appointed task. Had such a scooter been present, plaintiff argues, Barth would not have required any assistance in closing the door, for Barth could have helped himself to a door puller from the scooter and closed the door himself. Plaintiff claims the testimony at trial established that a scooter with door closing equipment usually accompanied car inspectors and that it was "good railroad practice" to have a scooter do so. From this premise he goes on to argue that a jury could fairly conclude that the railroad should have foreseen that if the scooter did not accompany the car inspectors an inspector might be tempted to cross between the cars in order to aid his partner in manually closing a door, and should have foreseen the attendant risk that the inspector in so crossing at night might miss his footing and fall. Petitioner concludes that this evidence is enough to support the jury's verdict since the jury question involved is "whether there was evidence that any employer negligence caused the harm, or, more precisely, enough to justify a jury's determination that employer negligence had played any role in producing the harm." Gallick v. B. & O. R.R., 372 U.S. 108, 116, 83 S. Ct. 659, 664, 9 L. Ed. 2d 618 (1963); Inman v. B. & O. R.R., 361 U.S. 138, 80 S. Ct. 242, 4 L. Ed. 2d 198 (1959); Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-507, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957).
This ingenious theory has, however, certain fatal limitations. As we previously noted, the record is devoid of evidence tending to show that the equipment on which the plaintiff stepped was defective. And there is no evidence tending to show the DeWitt yard, illuminated as it was, was not a safe place to work. It is fundamental in FELA cases that the fact an employee is injured is not proof of negligence of the carrier. Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 577-578, 71 S. Ct. 428, 95 L. Ed. 547 (1951). Here if there were negligence plaintiff would ground it upon defendant's failure to have a scooter loaded with door-closing equipment accompany the plaintiff and his partner. If, as the plaintiff urges, it was good industry practice to have a scooter accompany each pair of inspectors we would have no trouble concluding that there had been a failure to comply with that practice. But the record establishes only that it was good industry practice to have a motor scooter readily accessible to the two or three pairs of car inspectors that ordinarily inspected a train the length of the "Buffalo Extra"; it does not establish that it was good industry practice to have a scooter accompany each pair of inspectors.*fn2 If "good industry practice" is to be the touchstone differentiating negligent from non-negligent conduct, it would seem to be imperative for the plaintiff to prove that the scooter, contrary to good industry practice, was not readily accessible to him and his partner. This the plaintiff has not done. Indeed, the evidence suggests that the scooter, arriving so soon after the accident, was readily accessible to all the inspectors working on the train that night.
Of course, industry practice is not always the measure of proper diligence. In some cases "a whole calling may have unduly lagged in the adoption of new and available devices." The T. J. Hooper, 60 F.2d 737, 740 (2 Cir. 1932). In such cases courts have properly felt free to hold that higher standards are required. But to invoke this line of cases there should first be introduced some evidence that the general practice of the industry is not a reasonably prudent practice. The plaintiff made no attempt to introduce such evidence. We thus are unable to save the verdict by assuming that the jury concluded the prevailing industry practice was an insufficient one. Such a conclusion would be improper for us to reach because there is no evidence in the record on which it might have been, or could be, based.
The issue here of appellant's negligence vel non turns on whether the scooter was readily accessible. Our dissenting colleague agrees with this formulation of the issue, but concludes that a reasonable jury might have found on the basis of the evidence that the scooter was not readily accessible to Barth and appellee as they inspected the train. Established rules of evidence teach us that the appellee had the burden of producing evidence tending to show that the scooter was not readily accessible. McCormick, Evidence § 306 (1954). The appellee failed to meet this burden, which is not surprising because the issue of ready accessibility was not focused at the trial.*fn3 According to the dissent, the fact the scooter arrived ten minutes after Barth went for help and the fact Kimber could not with certainty remember whether he had assigned the scooter to assist the team of inspectors inspecting the Buffalo Extra*fn4 satisfied appellee's burden of production. We disagree. A reasonable man could only infer from the fact the scooter arrived ten minutes after Barth went for help that it was in the immediate area. After all, it took only ten minutes for Barth on foot to search out the scooter, wherever it was, acquaint the driver with the situation, and return with the scooter to the scene. There is no record evidence tending to show that "readily accessible" scooters invariably, frequently, or even sometimes, arrived earlier than ten minutes after they were summoned. On such a record, a scooter that appears within ten minutes after it is summoned must be considered to have been readily accessible. The only other bit of circumstantial evidence relied upon in the dissent as tending to prove that the scooter was not readily accessible to appellee and Barth was Kimber's statement that he was not sure whether he had assigned the scooter to assist the Buffalo Extra inspection team on the night of the injury. Even if unanswered by the defendant*fn5 this evidence would not "justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain." 9 Wigmore, Evidence § 2494, at 299 (3d ed. 1940). The desired inference is that the scooter was not readily accessible. Kimber's testimony,*fn6 taken most favorably for the appellee, is probative on this issue if, but only if, the scooter would not be readily accessible to a given crew unless the foreman assigned the scooter to that crew. The record is devoid of evidence tending to establish this proposition.*fn7 Kimber's testimony that he was not sure of the scooter's location is therefore no more probative as tending to establish the railroad's negligence than it would be if given by a bystander.
If good industry practice is the test of an employer's diligence, and it should be the test in the absence of argument or proof to the contrary, the plaintiff must fail, for he has not shown that the scooter was not readily accessible. There is no evidence to justify a jury's determination that employer negligence played any role whatsoever in producing the harm the employee suffered. Compare Gallick v. B. & O. R.R., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963). Inasmuch as the many FELA cases cited by the plaintiff are distinguishable on this ground we need not review the jury's determination that this injury was reasonably foreseeable.*fn8
We reverse and order that the judgment for the plaintiff be set aside and that judgment be ...