Opinion
May 3, 1943.
Action under the Federal Employers' Liability Act (U.S. Code, tit. 45, ch. 2) to recover damages for injuries to plaintiff's lungs, suffered during the course of his sixteen years' employment with the defendant railroad, where part of his duties consisted of working with sand and pouring it into defendant's locomotives. Judgment entered on the verdict of a jury in favor of plaintiff reversed on the law, with costs, and the complaint dismissed on the law, with costs. Appeal from order denying defendant's motion to set aside the verdict and for other relief dismissed, without costs. This court does not disapprove of the verdict insofar as it finds that the described conditions existed in connection with plaintiff's employment, but holds as a matter of law that the facts do not indicate negligence by the defendant. The trial court properly held that the test of the defendant's negligence was whether or not it had conducted itself as a reasonably prudent person (railroad) would under the circumstances. We find that there is no evidence upon which the negative of the test can be based. It does not appear that any other employer similarly engaged ever conducted this phase of its business in any materially different manner; that any workman was ever thus injured in the course of handling sand; that plaintiff ever complained that he was being injured, or that the handling of sand in the comparatively open air was inherently dangerous; and there is no evidence that defendant had notice of any dangerous condition that might create a duty to take unusual precautions. The issue of negligence, therefore, should not have been submitted to the jury. The defendant is not chargeable with negligence because it failed to use different means of conducting the work when no notice of the necessity therefor existed. ( Halverson v. 562 W. 149th Street Corp., 290 N.Y. 40.)
Adel, Taylor and Lewis, JJ., concur; Hagarty, J., concurs in the reversal of the judgment and the dismissal of the appeal from the order, but dissents as to the dismissal of the complaint and votes to grant a new trial;
In my opinion there was a question of fact for the jury. Taking the plaintiff's testimony at its face value, he was required to work in the sand house about one hour every night. This sand after being dried, when thrown on the fine meshed screen, threw off a dust-like powder and was so thick in the room that he could see nothing and when it was blown from the uncovered bin up to the top of the sand house it also threw off a powder-like dust. I believe it was for the jury to say whether the defendant should not have anticipated the danger. "Negligence is gauged by the ability to anticipate." ( McGlone v. Angus, Inc., 248 N.Y. 197, 199.) "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." ( Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344). Under the circumstances present here, if reasonable care would have anticipated such a result then it was the duty of the employer to protect its employee. Whether this defendant should have apprehended the danger was a question of fact for the jury. That question is not to be determined by the fact that other railroads may also have engaged in the same practice and failed to take precautionary measures, particularly where, as here, there is an absence of proof showing that the conditions on the other railroads are the same. While evidence of the lack of precautionary measures on other railroads where conditions are the same may well be taken into consideration, such proof cannot be made the sole test in determining whether this defendant, in the exercise of reasonable care, should have anticipated the danger and, hence, taken commensurate precautions. The decision of the majority of this court, however, is apparently based on that theory. The issue of defendant's negligence here, as in every negligence case, is whether upon all the facts adduced defendant failed in its duty of exercising reasonable care; and not whether this defendant conducted its operations in the same manner as other railroads. The fortuitous circumstance that no one was injured in following the practice adopted by other railroads does not establish, as matter of law, that the practice was a careful one, no more than the circumstance that one was injured by following such a practice establishes that the practice was a careless one. In my opinion there can be no distinction between dust arising from sand and dust arising from other substances. Baltimore Ohio R.R. Co. v. Branson ( 128 Md. 678) involved a case where the employee suffered injuries by reason of inhaling particles of paint forced into the air by a "gun" used by him in spraying paint upon locomotives. It was held that these injuries should have been anticipated by the employer. The decision in that case was reversed, but only on the theory that the employer was not engaged in interstate commerce ( 242 U.S. 623).