Coffey, Frank T. v. Northeast IL Region ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2310
FRANK T. COFFEY,
Plaintiff-Appellant,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER
RAILROAD CORPORATION (METRA),
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3621—Charles R. Norgle, Sr., Judge.
____________
ARGUED FEBRUARY 13, 2007—DECIDED MARCH 9, 2007
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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, who worked as an
engineer for a commuter railroad, brought suit against his
employer, charging negligence under the Federal Employ-
ers Liability Act, 45 U.S.C. §§ 51-60, plus a violation of the
Locomotive Inspection Act, 49 U.S.C. §§ 20701-20703 (such
a violation is negligence per se under the FELA). Early one
morning, when it was still pitch dark, the plaintiff had
climbed into the driver’s cab of the train and (according to
his version of the accident, which the procedural posture
2 No. 06-2310
of the case—the district court granted summary judgment
for the defendant—requires us to credit), while reaching
for the light switch, bumped his forehead against the sun
visor, which was in a horizontal position rather than, as it
should have been, turned up so that it was flush with the
wall above the cab’s windshield. He alleges improbably
that he sustained serious injuries from the bump, even
though it didn’t prevent him from driving the train to its
destination.
The case is remarkable chiefly for the lack of investiga-
tion by the plaintiff’s lawyer. He never bothered to deter-
mine what the visor is made of (his client didn’t know,
beyond saying that it was “very hard” and was “probably
metal”), its weight and dimensions, what its padding
was made of and how thick the padding was (the plaintiff
testified that it was “real thin”); the distance between the
visor’s edge and the seated engineer; and whether the light
switch was so placed that in groping for it the engineer
would be likely to thrust his head forward and hit the
visor. The defendant’s expert estimated that the plaintiff’s
head would have been 11.5 inches from the visor when he
was where he said he was in the compartment, and the
expert speculated that what really had happened was that
the plaintiff had tripped over the workbag that he had
carried with him into the cab and had fallen against the
visor—which was what the plaintiff said had happened
when he first reported the accident.
His lawyer conjectured that the bolts that fasten the visor
to the wall had been loosened as a result of the train’s
vibration and the loosening had caused the visor to de-
scend halfway so that it was pointing at the driver’s head.
The conjecture is implausible, though not quite so outland-
ish that it can be rejected as a matter of law. But pretty
No. 06-2310 3
outlandish—a lack of friction due to the bolts’ being loose
should result, once the train’s vibration started the visor
on its downward journey, in its descending all the way; for
it to stay in the horizontal position there would have to
be enough friction to support the visor’s weight, since if
there wasn’t the visor wouldn’t stop in the middle.
The lawyer made no request to inspect the visor. He did
ask a Metra foreman whether there had been “any kind of
repair or modification” of the cab after the plaintiff re-
ported the injury. The foreman replied that there hadn’t
been any repair that he was aware of, the inspection of the
visor after the accident having revealed no defects in it. The
plaintiff testified that the visor moved “fairly easily.” But
this does not imply that it was so loose that it would
tumble down all by itself—and stop before it was all the
way down.
Nor did the lawyer make any effort to find the engineer
who had last driven the train from that cab. (The train has
cabs at either end from which it can be operated.) Suppose
that driver had left the visor in the horizontal position,
not realizing or perhaps not caring that it would pose a
hazard to the next driver if, as happened, the next driver
entered the cab while it was still dark outside. (That is a
likelier explanation of its position than the loose-bolts
theory.) Then, since the FELA abolishes the “fellow
servant” rule of the common law of industrial accidents, 45
U.S.C. § 51; Lancaster v. Norfolk & Western Ry., 773 F.2d
807, 817-18 (7th Cir. 1985), the earlier driver’s negligence
would be imputed to the railroad.
The lawyer failed to explore still another possible theory
of liability. A visor that drops down without being moved
because it is too loosely fastened is a menace because it
can distract the engineer by suddenly falling and blocking
4 No. 06-2310
part of his visual field, as in Moan v. Aasen, 31 N.W.2d 265,
265-66 (Minn. 1948), and Sodemann v. Chicago, Milwaukee,
St. Paul & Pacific R.R., 244 N.W. 865, 866 (Iowa 1933). Even
if the engineer’s bumping his head against the jutting
visor was so unlikely to happen, or so unlikely if it did to
hurt him, that the railroad had no duty to take precautions
against such an accident, the fact that the railroad did have,
and failed to perform, its duty to prevent the visor from
dropping down suddenly and thus distracting the engineer
could entitle a bumped engineer to a judgment. The
accident would on that assumption have been averted
had the railroad complied with its duty of care; and as
between the careless railroad and the engineer (who
would not be barred from recovery even if contributorily
negligent, 45 U.S.C. § 53), it might well seem that the loss
from the accident should fall on the railroad. The common
law rule is that even a negligent injurer is liable only for
injuries that he should have anticipated and guarded
against, and not for injuries that would have been
serendipitously prevented had he satisfied his duty of
care, as in our recent case of Shadday v. Omni Hotels Man-
agement Corp., No. 06-2022, 2007 WL 509679, at *6-7 (7th
Cir. Feb. 20, 2007); see also Carter v. United States, 333 F.3d
791, 797 (7th Cir. 2003), and cases cited there. But the
Supreme Court has rejected the application of this rule to
FELA cases. Kernan v. American Dredging Co., 355 U.S. 426,
438-39 (1958).
As framed by the plaintiff’s lawyer, however, the issue
of negligence in this case comes down to whether the
railroad was negligent in failing to protect its engineers
from the risk of colliding with a visor that dropped
down into the horizontal position as a result of not being
fastened tightly enough. Although the FELA is often said
No. 06-2310 5
to require only slight evidence of negligence, e.g., Mendoza
v. Southern Pacific Transportation Co., 733 F.2d 631, 632-33
(9th Cir. 1984), that is not what the statute says; and as the
Supreme Court reminded us just weeks ago: “Absent
express language to the contrary, the elements of a FELA
claim are determined by reference to the common law.”
Norfolk Southern Ry. v. Sorrell, 127 S. Ct. 799, 805 (2007); see
also id. at 807; Page v. St. Louis Southwestern Ry., 349 F.2d
820, 823 (5th Cir. 1965).
It’s true that the FELA makes the railroad liable for
“injury or death resulting in whole or in part from the
negligence” of the railroad or its employees, 45 U.S.C. § 51(emphasis added), and this has been interpreted to mean
that the railroad is liable if “the proofs justify with reason
the conclusion that employer negligence played any part,
even the slightest, in producing the injury or death for which
damages are sought.” Rogers v. Missouri Pacific R.R., 352
U.S. 500, 506 (1957) (emphasis added); see also Walker v.
Northeast Regional Commuter R.R., 225 F.3d 895, 897 (7th Cir.
2000). “The fact that there may have been a number of
causes of the injury is . . . irrelevant as long as one cause
may be attributable to the railroad’s negligence.” Heater v.
Chesapeake & Ohio Ry., 497 F.2d 1243, 1246-47 (7th Cir.
1974). A concurring opinion in the Sorrell case suggests
that Congress’s only purpose in specifying “in whole or
in part” was to make clear that a railroad would be liable
if it was negligent even if the injured worker had been
much more negligent. Norfolk Southern Ry. v. Sorrell, supra,127 S. Ct. at 810-11. A similar case, however, would be
that of joint tortfeasors of unequal responsibility, as when
one railroad creates a hazard that the second, the defen-
dant, fails through negligence to detect, cf. Webb v. Illinois
Central R.R., 352 U.S. 512 (1967); and even if the hazard had
6 No. 06-2310
been innocently created, still the negligent failure to de-
tect it would make the defendant liable.
We needn’t plumb the mysteries of causation in FELA
cases more deeply. The essential point is simply that
causation and failure to exercise due care are separate
inquiries, and the relaxation of common law standards
of proof applies to the first rather than to the second. Still,
it is possible to tell a story in which the horizontal position
of the visor in this case was a result of the railroad’s
negligence in failing to tighten the bolts. And then it
wouldn’t matter if as is likely the plaintiff tripped over
his own workbag and fell against the visor; it wouldn’t
matter even though in that event his own clumsiness or
inattention might be thought the principal cause of
his injury, especially since if the visor had been in its
upright position he might have hit his head against the
windshield instead, with equally grave or even graver
consequences.
Because the engineer often enters the cab when it is too
dark to see the interior, and the light switch is inside the
cab, there is a danger that before he can find or turn on the
light he’ll collide with any object that protrudes into the
cab’s interior. The visor could be such an object if because
its bolts were loose the natural vibration of the train had
caused it to descend to the horizontal position. Maybe
it could even be argued that since that position has no
possible utility—a visor horizontal to the window will be
above it and not block any light—the position itself is
evidence of negligence, whether the visor came to be in
that position because of the carelessness of the previous
driver or the loosening of the bolts by vibration. The train
had been driven from its other end between the time when
the previous driver left the cab and the time when the
plaintiff entered it, so the visor might have slid down
No. 06-2310 7
between the departure of the previous driver and the
arrival of the plaintiff.
The missing links in the plaintiff’s negligence case are
evidence of the proximity of the visor in its horizontal
position to the driver’s head when he is groping for the
light switch, and the weight and padding of the visor. If
the visor is light and well padded, like the sun visor of an
automobile, the railroad would have no reason to antici-
pate that bumping one’s head on it would cause an injury
and that therefore precautions should be taken to make
sure the visor is never in the horizontal position. Perfunc-
tory investigation by the plaintiff’s lawyer would have
filled in these missing links, but none was ever conducted.
The record contains no plan of the cab, and though there
are photos they don’t reveal the layout. Nor are the essen-
tial dimensions of the cab and the visor in the record. The
plaintiff, in short, has failed to make a prima facie case of
negligence.
But we must consider the bearing of the Locomotive
Inspection Act (formerly the Boiler Inspection Act). The Act
requires that the driver’s cab be free of conditions that
endanger the crew. 49 U.S.C. § 20701(1); Lilly v. Grand
Trunk Western R.R., 317 U.S. 481, 485-87 (1943); McGinn v.
Burlington Northern R.R., 102 F.3d 295, 298-99 (7th Cir.
1996); Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088, 1091
(4th Cir. 1987). And although the Act does not create a right
to sue but merely establishes a safety standard, the failure
to comply with that standard is negligence per se under the
FELA. Urie v. Thompson, 337 U.S. 163, 188-89 and n. 30
(1949); McGinn v. Burlington Northern R.R., supra, 102 F.3d
at 298-99; Lisek v. Norfolk & Western Ry., 30 F.3d 823, 825-26
(7th Cir. 1994). That means that the plaintiff “is required to
prove only the statutory violation and thus is relieved of
8 No. 06-2310
the burden of proving negligence.” Crane v. Cedar Rapids &
Iowa City Ry., 395 U.S. 164, 166 (1969). He still has to prove
a causal relation between a violation and the injury for
which he is suing, but there he gets the benefit of the “in
whole or in part” language of the FELA. Id.As far as concerns this case, the Locomotive Inspection
Act merely requires that the cab be safe; and that is no
different from what the FELA would require by itself. But
the plaintiff cites several regulations under the Locomo-
tive Inspection Act, and a violation of such a regulation
would be negligence per se, just like a violation of the Act
itself. Lilly v. Grand Trunk Western R.R., supra, 317 U.S. at
485-86; McGinn v. Burlington Northern R.R., supra, 102 F.3d
at 299; see also Herold v. Burlington Northern, Inc., 761 F.2d
1241, 1246 (8th Cir. 1985). One of the regulations merely
repeats what the statute says—that the cab must be safe,
49 C.F.R. § 229.45. Another, more promisingly, requires
that sharp edges inside the cab be eliminated or padded,
49 C.F.R. § 238.233(e), but this regulation didn’t go into
effect until long after the cab car was placed in service,
and it is inapplicable, “Section 238.233 Interior Fittings
and Surfaces,” 64 Fed. Reg. 25540, 25614 (May 12, 1999)—
and anyway the visor was padded.
A third regulation requires the cab to “have a conve-
niently located light that can be readily turned on and off
by the persons operating the locomotive and that provides
sufficient illumination for them to read train orders and
timetables.” 49 C.F.R. § 229.127(a). It is unclear whether
this is a reference to the kind of light that the plaintiff
was groping for. The regulation refers to other lights as
well, but they are “cab lights which will provide sufficient
illumination for the control instruments, meters, and
gauges to enable the engine crew to make accurate read-
No. 06-2310 9
ings from their normal positions in the cab. These lights
shall be located, constructed, and maintained so that light
shines only on those parts requiring illumination and
does not interfere with the crew’s vision of the track and
signals.” Id. So the regulation may not refer to “his” light
at all. Still, under the Locomotive Inspection Act itself,
without regard to the regulation, if the light switch was
in an “inconvenient” place and hence “can[not] be readily
turned on and off” and as a result would contribute to the
injury if its placement created a risk to the engineer of
bumping his head on the visor while reaching for the
switch, the plaintiff might have a case. But he hasn’t
shown this. So he loses.
The case illustrates the curious and deplorable aversion
of many lawyers to visual evidence and exact measure-
ments (feet, inches, pounds, etc.) even when vastly more
informative than a verbal description. We have noted
this aversion in previous cases, United States v. Boyd, No.
06-2431, 2007 WL 219940, at *3 (7th Cir. Jan. 30, 2007); Miller
v. Illinois Central R.R., 474 F.3d 951, 954 (7th Cir. 2007);
United States v. Barnes, 188 F.3d 893, 895 (7th Cir.
1999)—once remarking that some lawyers think a word is
worth a thousand pictures. Id. A wide-angle photo of the
cab (showing its layout)—or better, because an angle
wide enough to take in the whole cab would create dis-
tortion, a schematic diagram or blueprint with the di-
mensions indicated—would have revealed at a glance
whether the visor in a horizontal position, in juxtaposi-
tion with the location of the light switch, created a signifi-
cant risk of the engineer’s bumping his head. And informa-
tion on the weight of the visor and the material and
thickness of the padding would have revealed whether the
potential for injury that was created by its being in a
10 No. 06-2310
horizontal position was sufficiently great to require the
railroad to take precautions against its ever being in that
position.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-07