Roger S. Darrough v. Csx Transportation , Inc ., Arailroad Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2724
R OGER S. D ARROUGH ,
Plaintiff-Appellant,
v.
CSX T RANSPORTATION , I NC .,
A RAILROAD CORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 01-59-C-Y/H—Richard L. Young, Judge.
____________
A RGUED J ANUARY 17, 2003—D ECIDED M ARCH 4, 2003
____________
Before B AUER , P OSNER , and E VANS , Circuit Judges.
E VANS , Circuit Judge. Every day, cat owners see acci-
dents that result when there’s no kitty litter around. But
it seems quite odd to have a case where a human blames
his own accident on the absence of kitty litter. This, how-
ever, is such a case.
Roger Darrough, 46, has worked for the CSX railroad (or
one of its predecessors) for 26 years. From 1991 until his
accident in June 2000, he was assigned to the railroad’s
bridge department. In the spring of 2000, Darrough was
working on the Gumlick Bridge in Kentucky, which, at
131 feet, was the highest bridge he had ever worked on.

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2 No. 02-2724
And being up that high was, according to Darrough, “really
spooky, very spooky.” His crew was removing old pine
ties and replacing them with oak ties.
By the time of the accident the new ties had been laid,
and the crews were working on the guardrail. That day,
Darrough, who was responsible for carrying the pins used
to secure the guardrail, walked 100 feet to pick up some
pins, then returned to where he was working. When he
got back, his foot slipped between two ties (which were 6
to 8 inches apart) and fell through. But he didn’t fall to
the ground. As his brief puts it, “His leg went between
the ties and sank down approximately 21 inches.” No one
witnessed the actual fall. Darrough says he suffered foot
and knee injuries, along with an array of emotional in-
juries resulting from fear that he would actually fall off
the 131-foot-high bridge.
Darrough claims he fell after slipping on creosote, a
substance that is applied to railroad ties in order to pre-
serve them. But creosote also has a tendency to seep out
and create slippery conditions on hot days. Substances
such as kitty litter, dirt, dry concrete, or sand can provide
traction and are often applied to combat the slippery
conditions. Under CSXT policy, all of the members of
Darrough’s crew were encouraged to use the company
credit card to purchase kitty litter (or a similar sub-
stance) to bring to the bridge if they felt the conditions
were dangerous. Although the crew had been working
on the Gumlick Bridge for about a month before Darrough
fell, no one had taken advantage of that offer. None of
the workers brought anything to counteract the effects
of creosote in the weeks after Darrough’s fall, either.
The day after the incident, Darrough’s co-workers and
supervisors met to determine the cause of the fall and to
discuss ways to prevent similar incidents. The report
from the meeting concluded that the fall resulted from

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No. 02-2724 3
Darrough not being “focused on where his feet were placed
on the tie,” though creosote was listed as a possible factor.
Darrough sued under the Federal Employers’ Liability
Act, 45 U.S.C. § 51, claiming that CSXT negligently
failed to provide him with a reasonably safe place to
work. The district court denied CSXT’s motion for sum-
mary judgment. After a 3-day bench trial, the court found
that Darrough’s fall was the result of his own negligence
and that CSXT was not negligent. Darrough appeals
that ruling. He also argues that what the district court
referred to as Darrough’s negligence was really just his
assumption of the risks of working on the railroad, and the
hoary tort defense of “assumption of risk” is barred under
the FELA.
We review the district court’s factual findings for clear
error, Reynolds v. City of Chicago, 296 F.3d 524, 527 (7th
Cir. 2002). Under the FELA, Darrough need only show
that the employer’s negligence “played any part, even the
slightest, in producing the [employee’s] injury.” Rogers
v. Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957). The
question is whether the railroad exercised reasonable
care in creating a reasonably safe working environment,
not whether that working environment could have been
safer. See Walker v. Northeast Reg’l Commuter R.R. Corp.,
225 F.3d 895, 899 (7th Cir. 2000).
To support his claim, Darrough says he warned his
supervisor a month before the accident that the ties were
getting slick, yet the supervisor did not take any action.
He also points to the testimony of several of his co-work-
ers that creosote was bleeding out of the ties, making
their work area slippery.
In response, CSXT notes that Darrough originally (dur-
ing an early deposition) said that there was nothing
unusual about the level of creosote on the ties and that
his fall was caused by his becoming “off stride.” CSXT

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4 No. 02-2724
also points to the testimony of Darrough’s supervisors
that they frequently inspected the bridge and did not find
an excessive amount of creosote or an unsafe environment.
After hearing all of the evidence, the district court
came to the reasonable conclusion that “[m]ost likely,
Darrough’s leg slipped between two ties because he mis-
judged where he placed his foot and, as he pivoted to face
the rail and guard timber where he was placing the lag
bolts, his foot went between the ties.” Given that Dar-
rough said almost the same thing in his deposition, we
find no clear error in the district court’s determination.
Even if creosote was responsible for the fall (a possibil-
ity, even though neither Darrough nor his co-workers
thought the ties were so slick as to warrant putting down
kitty litter), the finding that CSXT was not negligent
has support in the record. Darrough and his co-workers
could have bought kitty litter or a similar product at the
company’s expense at any time if they thought the situa-
tion was dangerous. Darrough seems to suggest that
CSXT should have had such a substance on site. But, as
we have said, CSXT did not have to create the safest
possible work environment (which likely would include
an inefficient daily dousing of kitty litter, whether it was
necessary or not), only a reasonably safe one. CSXT made
Darrough’s environment safe by offering workers the
time and money to obtain sand or kitty litter whenever
they thought the ties were becoming slippery.
Darrough’s assumption-of-risk argument is equally
unpersuasive. Darrough argues that what the district
court considered to be Darrough’s contributory negligence
is really just the assumption of the risk of dangerous
railroad working conditions. That is, Darrough says he
had to accept dangerous working conditions in order to
have a job with the railroad, a requirement that is barred
by the FELA.

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No. 02-2724 5
Darrough’s argument ignores the fact that the district
court found that Darrough simply put his foot in the
wrong place and that the workers had the power to ad-
dress any slippery conditions they encountered. Dar-
rough’s theory only holds if CSXT forced him to work in
an unsafe environment, and, for the reasons we just
discussed, the district court reasonably found that it
did not. While there is certainly some inherent danger in
replacing railroad ties on a high bridge, employees
were able to work safely by paying attention to what
they were doing, something Darrough, by his own admis-
sion, apparently did not do. Accordingly, the district
court’s judgment is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-03

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