Fugazzi

Fugazzi appeals from a judgment notwithstanding the verdict setting aside a judgment in his favor for $8,575.00 for personal injuries received while in the employ of the Southern Pacific as car repairman in the Company’s yard at Stockton, California. The court had denied the Southern Pacific’s motion for a directed verdict and the question here is, was the court right in denying that motion or right in granting the motion to set aside the judgment.

The complaint alleged that the Company’s employee had caused Fugazzi to work in a place known to the Employer to be unsafe and as a result of so working he was injured. It was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 , providing that the railway is liable to its employee for “injury * * * resulting in whole or in part from the negligence of any of the * * * employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars * * * appliances * * * or other equipment.” (Emphasis supplied.) The company is liable for its negligence regardless of the employee’s assumption of his risk in working in a negligently kept place of employment, 45 U.S.C.A. § 54 , and his…

(dissenting).

I dissent.

In my opinion the District Judge was right in entering judgment for the defendant notwithstanding the verdict for the plaintiff. A careful examination of the record fails to reveal any evidence at all of any negligence of the defendant causing, in whole or in part, the unfor *208 tunate injuries to the plaintiff. And up to the date of this writing, such evidence is still a legal requirement for a recovery-under the Federal Employers’ Liability Act. I say this because, after presiding as District Judge in almost one hundred F.E.L.A. cases, it has become evident to me that the Act is steadily being converted into a compensation statute. It has been said that the F.E.L.A. is now “a form of enterprise liability, approaching a state of negligence without fault.” 1 Along with many judges, I believe that there should be a Federal Compensation statute for railroad employees and seamen. 2 But so long as we have the present law, our duty is to follow it. This the trial judge did.

The record shows that the defendant railroad company maintained, at Stockton, California, a yard wherein trains are made up and light repairs made thereon. Freight cars coming into the…

208 F.2d 205 FUGAZZI, v. SOUTHERN PAC. CO. No. 13414. United States Court of Appeals, Ninth Circuit. Nov. 19, 1953. Rehearing Denied Dec. 23, 1953. John F. Moran, Leo Fried, James A. Himmel, San Francisco, Cal., for appellant. Horace B. Wulff, Sacramento, Cal., Devlin, Diepenbrock & Wulff San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and McCORMICK and GOODMAN, District judges. DENMAN, Chief Judge. 1 Fugazzi appeals from a judgment notwithstanding the verdict setting aside a judgment in his favor for $8,575.00 for personal injuries received while in the employ of the Southern Pacific as car repairman in the Company's yard at Stockton, California. The court had denied the Southern Pacific's motion for a directed verdict and the question here is, was the court right in denying that motion or right in granting the motion to set aside the judgment. 2 The complaint alleged that the Company's employee had caused Fugazzi to work in a place known to the Employer to be unsafe and as a result of so working he was injured. It was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 , providing that the railway is liable to its employee for 'injury * *…