The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.
It is the failure to use ordinary or reasonable care.
Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.<- BAJI, California Jury Instructions, 8th Edition
Negligence is carelessness and under the F.E.L.A. the "reasonably prudent person" is considered to be a reasonably prudent railroad company.
Injured railroad employees should consider four things with regard to negligence:
1. Railroad employees must be able to prove company negligence caused or contributed to an accident and/or injuries to recover damages.
2. Employees may not recover the portion of damages that result from their own negligence.
3. Employees may recover the portion of damages that result from railroad negligence (including fellow employees, officers and agents). If the railroad's negligence contributed in any part, damages can be recovered in proportion to the percentage of the railroad's fault.
4. Under some circumstances, such as when there is a safety appliance defect (stirrup, grab iron, etc.) or when the railroad violates a safety order, employees may recover their total damages even if they contributed to their own accident.
Negligence on the part of a plaintiff which, combining with the negligence of a defendant, contributes as a cause in bringing about the injury. - BAJI, California Jury Instructions, 8th Edition
Contributory negligence on the part of an injured worker may be the result of a violation of railroad rules or simply the failure to exercise the care that a "reasonable person" would exercise to prevent an injury. What is considered reasonable care is no different for an employee than for the employer.
In the principle known as "pure comparative negligence," the railroad's negligence is compared with that of the employee in determining the damages to be assessed. If negligence on the part of the railroad is not found there will be no award. However, if the injured employee is found to be say, 75% negligent and the railroad 25%, the employee is then entitled to 25% of his total damages.
In Rogers v. Missouri Pacific, the Court held:
"Under this statute (F.E.L.A.) the test of a jury case is simply whether the proofs justify, with reason, the conclusion that employer negligence played any part, even the slightest, in producing the injury for which damages are sought. It does not matter that, from the evidence, the jury may also, with reason, on grounds of probability, attribute the results to other causes, including the employee's contributory negligence. Judicial appraisal of the proof to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death."
The only requirement is that a causal relationship must exist between the acts of the railroad and the injury to the employee.
An exception to the pure comparative negligence rule exists when the railroad violates certain statutes or regulations enacted for the safety of the employee. In these cases, there can be no charge of contributory negligence because employees are entitled to all of the damages even if employee negligence contributed to the injury.
The ability to see or know in advance, hence, the reasonable anticipation that harm or injury is a likely result of acts or omissions. -Black's Law Dictionary
Reasonable foreseeability is an essential ingredient under the F.E.L.A. A railroad employee seeking damages for injuries resulting from an unsafe working condition must prove that the railroad had actual or constructive notice of that condition. The railroad is not required to foresee the condition as a cause of a particular injury, only as a potential cause of injury. In this regard, the court said in Waller v. Northern Pacific:
"The rule is firmly established that where the plaintiff slips on an object upon the premises of the defendant, plaintiff must, in order to establish liability, show that the defendant put the dangerous object there, or that the defendant knew (or by the exercise of reasonable diligence should have known) that it was there and failed to exercise diligence to remove it."
Reasonable foreseeability is not always easy to determine and in most cases is decided by a jury. In the previously-cited "bug bite" case, Gallick v. Baltimore & Ohio, the railroad contended that plaintiff's injuries resulted from such consequences as were beyond the realm of reasonable probability or foreseeability, and that it had no duty to protect the plaintiff from any such risk. The trial court ruled that there must either be:
"direct evidence that the existence of the un-identified bug at the time and place had a connection with the stagnant and infested pool...or more circumstantial evidence that the pool created conditions and influences which helped incubate or furnish an environment for the bug...or that the insect, having traveled from other areas, became contaminated or infected by the pool."
On appeal, the United States Supreme Court ruled that the evidence presented was sufficient to allow the jury to decide whether the insect emanated from the pool. It further concluded that it was proper for the jury to find that there was a causal relationship between the railroad's negligence and the plaintiff's injuries. The Court indicated that the question was whether there was evidence of any employer negligence causing the harm or, more precisely, enough to justify a jury's decision that the railroad's negligence played any role in producing the harm.
The railroad also argued that the injury was not reasonably foreseeable. The Court agreed. However, it found that the requirement of reasonable foreseeability of harm had been satisfied in this case, because the railroad negligently maintained the filthy pool of water on its property. The Court said:
"...defendant's duties are measured by what is reasonably foreseeable under like circumstances in the light of the facts then known, should or could reasonably have been anticipated."
The court added that it is widely held that a defendant, to be liable for consequential damages, need not foresee the particular consequences of his negligent acts. The Court quoted from Rogers v. Missouri Pacific, stating:
"...we have no doubt that a statute where the tort-feasor is liable for death or injury in which his negligence played any part, even the slightest, such a tort-feasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act."
In another leading case, Burns v. Penn Central, a passenger conductor, standing on the vestibule step of a train, was struck and killed by a rifle bullet fired by a boy on a nearby building. The Court held that, since stones had previously been thrown at trains in the general vicinity, the probability of injury was reasonably foreseeable to the railroad, and the jury was entitled to decide railroad negligence.
In cases where an inference is raised to the effect that a dangerous object was placed upon the railroad's property, proof of actual or constructive knowledge is not required. Such inference is permitted if the evidence shows only that an agent or employee of the railroad had access to the area and that the dangerous object was one that was in general use by the agents of employees of the railroad (Butz v. U.P.). If the object was placed on the railroad's premises by a third party, the railroad can be held liable only if it knew the object was present and had sufficient time to remove it (O'Brien v. L&N).
The doctrine of res ipsa loquitur, "the thing speaks for itself," applies when direct evidence of negligence is lacking, but the facts of the occurrence may warrant an inference of negligence. The conditions necessary for res ipsa loquitur are:
1. It is the kind of accident that does not happen unless someone is negligent.
2. The injury was caused by an agency or instrumentality in the exclusive control of the railroad, or over which the railroad had exclusive right of control and which was not mishandled or its condition otherwise changed after the railroad relinquished control.
3. The injury was not due to any voluntary action or contribution on the part of the employee which was the responsible cause of the employee's injury.
In Dugas v. Kansas City Southern, a boxcar cleaner was killed when a car door fell on him as he tried to open it by banging it against the door stop. The Court rejected the railroad's argument that the plaintiff was at least partially in control of the instrumentality which caused the injury, therefore defeating the application of the res ipsa loquitur doctrine. However, the jury was not permitted to decide whether the door was in the control of the plaintiff for purposes of applying the doctrine, since it was instructed as follows:
"Therefore, the Court would instruct you if you find from a preponderance of the evidence that the thing which caused the injury, which in this case was the door which was under the control of the defendant, and an accident such as in the ordinary course of things does not occur if the one being in control uses proper care, and you further find from a preponderance of the evidence that the door was a contributing cause of the injury, then you will find for the plaintiff under the doctrine of res ipsa loquitur."
There have been cases in which railroad employees have been awarded damages for injuries resulting from the negligence of third parties.
In the case of Boston & Maine v. Talbert, a brakeman was burned and had both legs crushed when the locomotive he occupied struck a propane gas truck at a crossing protected only by a cross buck sign. He died three hours after the accident. The Court held that the test of whether a jury case is presented under the F.E.L.A. is whether proofs justify, with reason, the conclusion that the railroad's negligence played any part, even the slightest, in producing the injury or death. The fact that the jury might also reasonably attribute the result to other causes, including contributory negligence on the part of the plaintiff, does not matter. The Court found that the evidence authorized the finding of negligence on the part of the railroad in maintaining a frequently-used grade crossing where only an advance warning sign and one traditional cross buck sign were placed.
In Herdman v. Pennsylvania Railroad, while traveling at a low speed, a conductor was injured in the caboose of a train when the brakes were applied to avoid striking an automobile with children. The sole question was presented under the doctrine of res ipsa loquitur. The Court found that there was no evidence to show that the unscheduled and sudden stop of a train is unusual or extraordinary and that, under the circumstances, the facts did not warrant the inference that the railroad was negligent.
In a similar case, New York, New Haven and Hartford Railroad v. Henegan, a waitress in a grill car sought damages for injuries sustained when the train brakes were placed in emergency after someone, apparently attempting to commit suicide, stepped onto the track from a station platform. The Court held that the proofs were insufficient to submit to the jury the question of whether the railroad's negligence played any part in the emergency application of the train brakes.
Most F.E.L.A. plaintiffs in grade crossing cases allege that the railroad did not provide a safe place to work because there were sharp edges or other defects on the caboose or locomotive they occupied or that the crossing was negligently maintained for the motorist and that these factors either caused or contributed to the accident or to the severity of the resulting injuries.