Ellis v. Louisville & NR Co.
1952 Ky. LEXIS 926, 251 S.W.2d 577 (1952)
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Rule of Law:
An employer is generally not considered negligent under the Federal Employers’ Liability Act for failing to implement a specific safety measure if its conduct conforms to the common usage and custom of the industry, and the employer had no reason to know of the particular danger.
Facts:
- Eldred F. Ellis was employed by the Louisville & Nashville Railroad Company for 25 years, from 1924 to 1949.
- His jobs as a 'herder' and pipe fitter’s helper required him to fill, inspect, and repair sand-dispensing equipment on locomotives.
- These tasks regularly exposed him to clouds of fine sand dust, which he inhaled.
- Approximately 90-95% of Ellis's work was performed outdoors, with his exposure to dust being intermittent and for short durations.
- Ellis occasionally worked inside a sand house where the company did provide respiratory masks to the workers regularly assigned there.
- The sand used by the railroad had never been known to cause silicosis when handled in open-air conditions.
- The common and established practice among railroads across the United States was not to provide masks to employees performing the same type of work as Ellis.
Procedural Posture:
- Eldred F. Ellis filed a lawsuit against the Louisville & Nashville Railroad Company in a trial court under the Federal Employers’ Liability Act (FELA).
- The defendant's answer included a plea of contributory negligence.
- The trial court sustained a demurrer to the defendant's contributory negligence plea, striking that defense from the case.
- At the conclusion of the trial, the judge directed a verdict in favor of the defendant railroad.
- The plaintiff, Ellis, appealed the directed verdict to the reviewing appellate court.
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Issue:
Does an employer breach its duty to provide a safe workplace under the Federal Employers’ Liability Act by failing to furnish an employee with a respiratory mask, when not providing a mask is the common industry practice and the employer has no reason to know the work conditions are dangerous?
Opinions:
Majority - Sims, Justice
No. An employer does not breach its duty under the Federal Employers’ Liability Act by adhering to common industry custom where it has no reason to foresee a specific danger. Negligence under the Act is determined by common law principles, which heavily consider the ordinary usage and custom of an industry as the standard of care. The evidence conclusively showed that the widespread practice among railroads was not to furnish masks for the type of intermittent, outdoor work Ellis performed. Since the railroad's conduct conformed to a long-standing industry practice that had not previously resulted in similar injury, and it used a type of sand not known to be hazardous under such conditions, the railroad did not fail to exercise ordinary care and was therefore not negligent.
Analysis:
This decision solidifies the significance of industry custom as a strong, albeit not absolute, defense against negligence claims under FELA. It establishes that an employer's adherence to the prevailing practices of its industry is powerful evidence of exercising due care. For future plaintiffs, this raises the bar, requiring them to show not just that a safer method was possible, but that the employer knew or should have known its adherence to industry custom was insufficient to prevent a foreseeable harm. The case limits employer liability by tethering the standard of care to the reasonable expectations and norms of the industry at the time.
