DENNIS v. DENVER & RIO GRANDE WESTERN RAILROAD CO.
No. 25.
Argued November 19, 1963.
—Decided December 9, 1963.
Wayne L. Black argued the cause for petitioner. With him on the brief were Calvin W. Raiolings, Harold E. Wallace, Brigham E. Roberts and John L. Black.
Clifford L. Ashton argued the cause for respondent. With him on the brief were Dennis McCarthy and Grant Macfarlane, Jr.
Per Curiam.
Petitioner, a section laborer employed by respondent railroad, brought this suit under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., in a Utah State Court to recover damages for personal injury sustained as a result of respondent’s alleged negligence. The jury, finding respondent negligent and petitioner contributorily negligent, assessed “general damages” at $20,000 and deducted $10,000 “by reason of contributory negligence,” leaving a verdict of $10,000 for petitioner. The Supreme Court of Utah vacated the jury verdict and ordered the entry of judgment for respondent. 13 Utah 2d 249, 372 P. 2d 3. We granted certiorari, 371 U. S. 946, to consider whether the Supreme Court of Utah erred in its action.
From the evidence adduced at trial the jury could have concluded that: Petitioner was required to work from about 5 p. m. to about 5 a. m. in temperatures ranging from 10° Fahrenheit to minus 5° Fahrenheit, in 10 inches of snow, with “the wind a-blowing pretty hard,” to repair a damaged section of railroad track; petitioner was dressed less warmly than the other members of the crew, and the foreman knew this; the only source of heat (outside of the cab of the truck which had transported the crew to the worksite) was a fire built from a single railroad tie, which did not give “very much” heat; at about midnight, petitioner, while handling a cold wrench, noticed that “two [of his] fingers were clamped shut and [he] had to pull them apart . . . before [he] could get [his] glove off”; he also noticed a “kind of burning, tingling sensation” in these fingers; although he communicated some or all of this to the foreman, petitioner was permitted to continue working on the track for about three and one-half hours; he spent only about one-half hour in the heated cab of the truck; as a result of this exposure, petitioner suffered frostbite and lost two fingers.
There can be little dispute that these facts, if believed, establish negligence by respondent railroad, since they show that the foreman, who had full control over petitioner’s activities while on this job, did not take all necessary and reasonable precautions to prevent injury to petitioner when put on notice of his condition. Lavender v. Kurn, 327 U. S. 645; Boston & M. R. Co. v. Meech, 156 F. 2d 109, cert. denied, 329 U. S. 763.
It is true that there was evidence in conflict with petitioner’s version of what occurred. For example, other members of the work crew testified that immediately after his complaint petitioner was transferred to the heated cab where he stayed until the end of the job, whereas petitioner testified that after his complaint he spent only one-half hour in the heated cab and three and one-half hours working outside. There was also evidence from which the jury could reasonably have concluded that petitioner’s own negligence was the sole cause of his injury. But in FELA cases this Court has repeatedly held that where “there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.” Lavender v. Kurn, supra, at 653. “Only when there is a complete absence of probative facts to support the conclusion reached [by the jury] does a reversible error appear.” Ibid. Once it is shown that “employer negligence played any part, even the slightest, in producing the injury,” Rogers v. Missouri Pac. R. Co., 352 U. S. 500, 506, a jury verdict for the employee may not be upset on the basis of his own negligence, no matter how substantial it may have been, although the jury may, of course, take petitioner’s contributory negligence into account, as it did here, in arriving at the final verdict.
In this case, petitioner’s evidence, though vigorously disputed, was sufficient to support the jury’s conclusion that respondent’s negligence contributed to the injury. Hence, “the appellate court’s function [was] exhausted,” Lavender v. Kurn, supra, at 653, and it could not properly substitute its judgment for that of the jury and decide, as the Supreme Court of Utah did here, that “it seems quite inescapable that it was [petitioner’s] own conduct . . . that resulted in this regrettable injury.” 13 Utah 2d, at 255; 372 P. 2d, at 7.
The judgment of the Supreme Court of Utah is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
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