     Case: 17-60817   Document: 00515431325     Page: 1   Date Filed: 05/28/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                 FILED
                                                               May 28, 2020
                                 No. 17-60817                 Lyle W. Cayce
                                                                   Clerk

SHAQUERE MYLESHIA GRAY, Co-Administratrix of the Estate of Gregory
Tramaine Miller; HANNAH LASHA HOZE, Co-Administratrix of the Estate
of Gregory Tramaine Miller,

             Plaintiffs - Appellants

v.

ALABAMA GREAT SOUTHERN RAILROAD COMPANY,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Gregory Tramaine Miller was crushed to death between the couplers of
two rail cars while working as a conductor trainee with Alabama Great
Southern Railroad Company. Summary judgment dismissing all claims was
granted on the basis that there was no evidence to support imposing any
liability on the railroad. The administrators of Miller’s estate argue on appeal
that there was evidence to create a jury issue. We AFFIRM.
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                                  No. 17-60817
              FACTUAL AND PROCEDURAL BACKGROUND
      On August 12, 2015, Gregory Miller was assigned to an Alabama Great
Southern train crew consisting of a conductor, M.A. Sillimon; a brakeman, J.D.
Henderson; and an engineer, A.C. Clearman. Miller rode the train to a facility
in Petal, Mississippi, in order to couple empty rail cars that would then be
taken to a different facility. Miller rode on one side of the train to the Petal
facility. Upon arrival, he safely crossed over the tracks on foot to the other side
of the train, using a safety procedure called “3-Step Protection” for crossing
between standing rail cars.
      The Alabama Great Southern is a wholly owned subsidiary of the Norfolk
Southern Railway Company. Each company uses the same Operating Rules
and Safety & General Conduct Rules.           Operating Rule 22 prohibits an
employee from going between standing equipment on the tracks for any reason
unless 3-Step Protection is first established. Going between moving equipment
on the tracks is never permitted. To establish 3-Step Protection, an employee
must first orally request passage between cars from the engineer. If the
request is made via radio, the employee must provide his or her occupation, job
symbol, and engine number. Once such a request is made, the second step is
for the engineer to take the following action: “apply the independent brake”;
next, “[p]lace the reverser lever in neutral position”; and finally, “[o]pen the
generator field switch.” Third, before the employee is permitted to go between
equipment on the tracks, the engineer “must acknowledge to each requesting
employee that ‘3-Step Protection’ is established.”
      After Miller successfully established 3-Step Protection and crossed the
tracks to the other side of the train, the train crew began to couple 11 rail cars.
At the start, each rail car was approximately ten feet from the next one. The
crew’s train coupled the first uncoupled car waiting on the switch track, and
the train was brought to a safety stop to ensure that coupling was successful.
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                                 No. 17-60817
      After the first coupling, Henderson was positioned at the north end of
the line of cars and Sillimon was at the south end. Miller was about one-half
of a car length south of Henderson, who was supervising Miller that night.
Henderson, while facing north toward the train coupled to the engine and away
from Miller, radioed the crew, “Everybody let me get big half to a bunch,”
meaning that the engineer should begin a “rolling coupling” of the remaining
ten rail cars by slowly shoving the train south at a speed never exceeding two
miles per hour, impacting and coupling each car, one right after the other,
without stopping.
      As the train approached, Henderson walked backward while facing north
toward the train to give “full attention on the engine coming down,” then
started to turn south to observe the couplings.      At this time, for reasons
unknown and without 3-Step Protection, Miller went between two rail cars
during the rolling coupling. Henderson testified that as he was turning to the
south, he noticed a “flash” and told Clearman to cease coupling by radioing,
“That will do.” Henderson could not see Miller, so he began walking south and
found Miller fatally injured, caught in the coupling between two rail cars, the
second of three couplings made during the shove.
      As co-administrators of Miller’s estate, Shaquere Myleshia Gray and
Hannah Lasha Hoze filed suit against the Alabama Great Southern Railroad
Company. They claimed the railroad was negligent in failing to train, instruct,
and supervise Miller, that the railroad also was negligent in failing to provide
a safe place to work for Miller, and that it was foreseeable that Miller would
go between rail cars, which was the cause of his death.
      In granting summary judgment for the railroad, the district court
concluded that Miller’s failure to establish 3-Step Protection before going
between rail cars was the sole cause of his death, that his going between
moving rail cars was unforeseeable, and that the plaintiffs failed to produce
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                                  No. 17-60817
evidence of any negligent acts by the railroad attributable to causing Miller’s
death. This timely appeal followed.


                                 DISCUSSION
      The suit was brought under the Federal Employers Liability Act
(“FELA”), 45 U.S.C. § 51. The FELA provides the exclusive remedy for a
railroad employee engaged in interstate commerce whose injury resulted from
the negligence of the railroad. Rivera v. Union Pac. R.R. Co., 378 F.3d 502,
507 (5th Cir. 2004). The FELA allows an injured railroad employee to recover
damages for “injury or death resulting in whole or in part from the negligence”
of the railroad. § 51. “Under FELA 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 or death for which
damages are sought.” CSX Transp., Inc., v. McBride, 564 U.S. 685, 692 (2011).
This standard leaves in place, though, the plaintiff’s burden to provide
evidence of “all the same elements as are found in a common law negligence
action.” Armstrong v. Kansas City S. Ry. Co., 752 F.2d 1110, 1113 (5th Cir.
1985). Indeed, “foreseeability is an essential ingredient of negligence under
the Act.” Id.
      The FELA eliminated a variety of traditional defenses, such as the
fellow-servant rule, the assumption-of-the-risk defense, and the doctrine of
contributory negligence. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,
542–43 (1994); 45 U.S.C. §§ 51, 53–55. Even so, if a plaintiff’s negligence is the
sole cause of the injury, a defendant has no liability under the Act. Southern
Ry. Co. v. Youngblood, 286 U.S. 313, 317 (1932).
      We review a grant of summary judgment de novo, meaning this court
considers the evidence and law in the same manner as the district court was
required to do. Ibarra v. UPS, 695 F.3d 354, 355 (5th Cir. 2012). Summary
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                                  No. 17-60817
judgment is appropriate if the movant demonstrates “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). Under the FELA, awarding summary
judgment to the defendant railroad is appropriate “[o]nly when there is a
complete absence of probative facts” to support a jury verdict in the plaintiff’s
favor. See Lavender v. Kurn, 327 U.S. 645, 653 (1946). “This standard is highly
favorable to the plaintiff and recognizes that the FELA is protective of the
plaintiff’s right to a jury trial.” Wooden v. Mo. Pac. R.R. Co., 862 F.2d 560, 561
(5th Cir. 1989) (punctuation edited).
      The plaintiffs argue that Miller’s failure to establish 3-Step Protection
was not the sole cause of his death because the railroad’s negligence must also
have had a role in the accident. They contend that there was “overwhelming
evidence” of at least some negligence by the railroad. Among their arguments
is that Henderson negligently supervised Miller. There was evidence that the
railroad used a supervisor/trainee system for on-the-job training. On the night
of the accident, Henderson was Miller’s supervisor. Although Henderson was
working as a brakeman that night, he was a certified conductor, making it
appropriate for him to supervise a conductor trainee. The plaintiffs say that
Henderson was negligent because “a mentor should know where his mentee is
at all times as he is in charge of ensuring the mentee’s safety.” At the time of
the incident, though, “Henderson had his back to Mr. Miller, did not know
where he was, and did not know what Mr. Miller was doing at any point while
the shoving movement was occurring.”           The plaintiffs also argue that
Henderson violated the railroad’s procedure by failing “to observe the coupling
that was occurring when Mr. Miller was injured.”
      There is no record evidence of any policy requiring that a supervisor
never stop looking at a conductor-trainee. Plaintiffs say such evidence does
exist, as Sillimon in his deposition testified that a trainee should always be
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                                    No. 17-60817
“within eyesight” of the supervisor. We do not interpret that testimony as
supporting that the supervisor cannot as necessary look a different direction
than the trainee during performance of the job. Instead, the supervisor must
always be in a position to “keep an eye” on the trainee, meaning no obstruction
to the view, even though at times the supervisor must concentrate on other
tasks.     The plaintiffs agree that Henderson was required to observe the
couplings, which means he would have had to take his eyes off Miller during
the first coupling, apparently just before Miller went between the second set of
rail cars.
         The only evidence as to rules for coupling is testimony vaguely describing
a conductor and brakeman’s duty of “observing a coupling.” We know from the
record that Henderson was in the process of turning to observe a coupling when
he saw a “flash,” which was Miller’s going between the rail cars. Henderson
radioed Clearman to stop the train. Having considered plaintiffs’ contentions
to the contrary, we conclude there was no evidence that Henderson violated
any procedure that played a part in Miller’s death.
         The plaintiffs also contend that the railroad negligently trained Miller
because he “was never trained on the procedures of a rolling couple and the
only evidence in the record suggests that he had never heard of such a move.”
The plaintiffs also argue the failure of Miller’s crew members to “adequately
job brief this procedure . . . played a central role in bringing about this injury.”
Thus, according to the plaintiffs, “[t]here is no evidence in the record to show
that Mr. Miller had any reason to believe that the cars would continue to move
or that he would be in danger if he needed to get between cars.”
         The plaintiffs’ point is that if Miller had not been made aware of rolling
couplings, then his undisputed knowledge of the procedures to be followed prior
to going between cars would, at the time of his fatal violation of those
procedures, have been joined by his ignorance that the cars would keep moving
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                                 No. 17-60817
after the initial coupling. Certainly, it was negligent for Miller to have gone
between the cars, but a failure of others to explain what was occurring could
have left him unaware of just how dangerous his actions would be. The only
evidence of a source for Miller’s knowledge was not identified by the railroad
until oral argument in this court. We may, but are not required, to consider
this evidence despite its late identification because we may affirm a judgment
on any ground that appears in the record. S&W Enters., L.L.C. v. SouthTrust
Bank of Ala., NA, 315 F.3d 533, 537 (5th Cir. 2003). We discuss the evidence.
      The evidence comes from Sillimon’s deposition. The dissent does not see
that testimony in quite the same way we do, viewing it as a possibly generic
description of how the work should be done as opposed to what was done that
night. We will summarize the immediately preceding testimony, then quote at
some length the relevant statements. Sillimon was asked about the coupling
that had been completed by this same crew at other locations earlier on the
night of Miller’s death. He mentioned the first location but did not explicitly
describe any rolling coupling there. The railroad’s counsel then asked Sillimon
to describe what happened at the second location, which still was not the job
site where Miller was fatally injured that same day:
            Q: All right. And how many cars did y’all work that night [at
      the second location]? Do you know?
            A: It was 20 ‐‐ it was 20 in, 20 out.
            Q. Okay. And y’all have to spot all 20 of them?
            A. That’s correct.
             Q. And how do y’all go about spotting these cars? How do
      y’all handle that?
            A. You spot each car up one at a time.
           Q. Okay. And take me through what you would do as the
      conductor, what the brakeman would do, and what the engineer
      would do in spotting these cars.


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                                  No. 17-60817
            A. As far as the brakeman and the conductor, it can go either
      or.
            Q. Okay.
             A. I can walk down and do a C‐100 [which he would later
      describe as checking each car prior to starting the coupling] and
      check everything, make sure the hoses are ‐‐ make sure there's no
      one in the tracks, make sure the hoses are down, make sure any
      chocks or anything that we couple up to ‐‐ so it won't derail
      anything. Or the brakeman can walk down and do a C‐100. And
      after we do a C‐100, I'll be in position at the bottom. The brakeman
      be in position at the top. He will make the first coupling, and the
      rest of the couplings be run‐in coupling.
            Q. And you refer to that as a running couple?
            A. That’s correct.
            Q. And what ‐‐ what is a running couple?
             A. When you couple up to the ‐‐ you got to make sure you
      coupled up to the first car. Once you coupled up to the first car,
      you bunch to the next car. Then you bunch and then you bunch
      until you get to the last two cars. You stop the move. You couple
      up to that second to the last car, and then you couple up to the next
      car.
      In summary, Sillimon started by saying it was necessary to “spot all 20”
cars at the earlier location. He then was asked how the crew would accomplish
that spotting. Certainly, some of his lengthy answer could be taken as a
general description of how the tasks are done, particularly in stating that
either the brakeman or the conductor could perform certain of the functions.
The key to us, though, is that Sillimon testified that a series of rolling couplings
had to be made at the job site preceding the one where Miller was fatally
injured. Perhaps there were shortcomings in initial training or otherwise in
making Miller aware of the dangers of a rolling coupling, specifically that the
train keeps moving as the closely spaced but not yet coupled cars are
sequentially linked.    Regardless of that possibility, Sillimon testified that
Miller had just experienced that sort of coupling.

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                                   No. 17-60817
      The plaintiffs also argue that it is a fact dispute whether Miller
requested 3-Step Protection. They discuss evidence that requesting over the
radio is not always heard. There is a protection for that built into the three
steps, though, i.e., the requesting employee must wait for the engineer to
“acknowledge to each requesting employee that ‘3-Step Protection’ is
established.”   It is undisputed that Sillimon did not acknowledge 3-Step
Protection to any employee during the time Miller went between the rail cars
and suffered his fatal injuries.
      Last, the plaintiffs contend that “[i]t is wholly foreseeable that an
employee will get between cars during the course of his work, especially when
as here he is expecting the movement to stop for some period of time.” They
rely on a Supreme Court decision in which the decedent stepped between
standing rail cars to detach a damaged car. Chicago Great W. R.R. v. Schendel,
267 U.S. 287, 289 (1925). There, the rail cars sat on a downward grade and
gravity caused the rail car to slide into the decedent, fatally injuring him. Id.
The Court held that although the decedent was partially negligent, the railroad
was liable because there was evidence that the damaged rail car did not meet
the statutory requirements to protect him, and that damage was the reason he
had stepped between the cars. Id. at 292. Unlike in Schendel, though, Miller
was killed during continuous coupling of cars, a process he had just witnessed
elsewhere, and during a time in which he knew not to cross between cars
without following the described protocols. In some circumstances it of course
is foreseeable that railroad employees will get between cars.              In the
circumstances here, stepping between cars was prohibited and the reasons for
the prohibition would have been clear.
      Finally, we consider whether plaintiffs are correct that the district court
improperly relied at least in part on a finding that Miller assumed the risk of
injury by stepping between the cars.         As we stated, the FELA abolished
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                                 No. 17-60817
assumption of the risk and similar defenses. See Gottshall, 512 U.S. at 542–
43. According to the plaintiffs, the district court’s reliance on the fact that
Miller knew how to utilize 3-Step Protection based on training and experience
means that it concluded that Miller assumed the risk of ignoring that protocol.
      We see no application of this discarded defense by the district court.
Though the district court mentioned that Miller was trained and tested on the
safety procedure before he went to field training, the court was merely
explaining Miller’s negligence. The district court stated that the plaintiffs
“ha[d] not produced evidence of any negligent acts attributable to [the railroad]
that caused the accident.” Gray, 2017 WL 6805046, at *3. That is a reference
to a lack of evidence, not to an assumption of risk.
      “If the employee’s negligence was the sole proximate cause of his injury,
he cannot recover.” Atlantic Coast Line R. Co. v. Dixon, 189 F.2d 525, 527 (5th
Cir. 1951). Though there is a lack of clarity as to exactly what happened,
Miller, unfortunately, negligently went between the two cars. In the absence
of any evidence to support a jury finding that some negligence on the part of
the railroad contributed to the accident, summary judgment was proper.
      AFFIRMED.




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                                 No. 17-60817
JAMES L. DENNIS, Circuit Judge, dissenting.
      I respectfully dissent. In my view, the record contains evidence from
which a reasonable jury could find that Miller’s death resulted at least in part
from AGS’s negligence: Miller was a new hire of about forty-five days with no
prior railroad experience, and he had not been schooled, trained, or instructed
in the multi-car rolling coupling procedure that resulted in his death. Miller,
therefore, may not have understood that more than a single car would be
coupled, and Henderson, the brakeman responsible for Miller’s supervision,
failed to keep Miller close to him and within his eyesight during the rolling
coupling. A reasonable jury could thus infer that the railroad’s negligence
played a part, even the slightest, in producing the injury or death for which
damages are sought, such that this case should proceed to a jury trial.
                                       I.
      FELA prescribes that:
      Every common carrier by railroad . . . shall be liable in damages to
      any person suffering injury while he is employed by such carrier
      . . . for such injury or death resulting in whole or in part from the
      negligence of any of the officers, agents, or employees of such
      carrier . . . .

45 U.S.C. § 51 (emphasis added). Congress enacted FELA in response to the
dangers inherent in working on the railroad, and its language on causation “is
as broad as could be framed.” Urie v. Thompson, 337 U.S. 163, 181 (1949); see
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-43 (1994).            The
Supreme Court has recognized that “in comparison to tort litigation at common
law, ‘a relaxed standard of causation applies under FELA.’”                   CSX
Transportation, Inc., v. McBride, 564 U.S. 685, 692 (2011) (quoting Gottshall,
512 U.S. at 542-43). “Under FELA 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 or death for which damages are
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                                  No. 17-60817
sought.” Id. (emphasis added) (quoting Rogers v. Missouri Pac. R. Co., 352 U.S.
500, 506 (1957)).
      We review a district court’s grant of summary judgment for the railroad
de novo, and “we must resolve all ambiguities, permissible inferences, and
material issues of fact in favor of the non-moving parties.” Total E & P USA
Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d 424, 429 (5th Cir. 2013). In a
FELA case, it is the province of the jury to weigh many factors, including the
nature of the task and the hazards it entails, in determining whether employer
fault “played any part, even the slightest,” in the employee’s injury. McBride,
564 U.S. at 692; see Bailey v. Central Vt. Ry., 319 U.S. 350, 353-54 (1943).
      The majority concludes that Plaintiffs have not produced evidence of any
negligent acts attributable to AGS that caused the accident and that Miller’s
negligence in going between the moving rail cars was not foreseeable.            I
disagree. Plaintiffs point to several acts or omissions by AGS and its employees
that a reasonable jury could find were negligent and “played [a] part, even the
slightest, in producing” Miller’s death. McBride, 564 U.S. at 692.
      First, the record reveals that Miller had been employed in railroad work
only forty-five days at the time of his death, and though he attended a
classroom training center in Georgia for nineteen days, the center did not
instruct conductor trainees like Miller on rolling couplings, the procedure the
crew employed at the time Miller was killed. The written rules and guidance
provided to Miller as a conductor trainee also did not describe the rolling
coupling procedure.      In the classroom, trainees were taught a different
procedure for coupling a single railcar—the engineer slowly drives the train
until it makes the connection with the car being coupled, the engineer stops
the train, and the crew members go between the cars to finalize the coupling.
Crew members then walk to the next rail car on the track to prepare for the
next coupling.      In practice, however, AGS employees also used a “rolling
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                                     No. 17-60817
coupling” procedure to couple more than a single rail car at a time, the
procedure that the crew utilized at the time Miller was killed. When executing
a rolling coupling, the engineer stops once after the first standing car is coupled
to the train, then, when signaled, he shoves the train at walking speed,
impacting and coupling each remaining uncoupled car, one right after the
other, without stopping until the next to last standing uncoupled car is coupled.
Once the second to last rail car is coupled, the train stops briefly, then the
engineer drives the train into the last car until it is coupled. Then the crew
makes sure that all couplings are secure, connects the air hoses between the
cars, and cuts the air in to the now-coupled cars.
        Though the trainees were taught the rules prohibiting employees from
going between moving railcars and that they must request 3-Step Protection
before moving between standing cars on a track,1 they were not specifically
trained or given any written or oral instruction on how the rules applied to
rolling couplings of a “bunch” of cars or the additional dangers inherent in the
rolling coupling of as many as nine to ten cars without stopping between
individual couplings. A reasonable jury could conclude that the railroad was
negligent in failing to provide Miller with basic training in rolling couplings
before he was required to participate in such a dangerous procedure in his
work.
        Second, a reasonable jury could find that, as in his classroom training,
Miller was not instructed during his on-the-job training as to how to participate
in a rolling coupling, nor was he provided notice that the crew was going to
perform a rolling coupling prior to the crew activating that dangerous


        Another rule explains that employees must not cross tracks “between standing
        1

separated cars or locomotives unless the equipment is separated by at least 50 feet and the
employee maintains at least l0 feet of separation between themselves and the nearest
equipment.” Three-step protection is required where, as here, “a locomotive is coupled to
standing equipment or is on the same track in a position to couple to the equipment.”
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                                  No. 17-60817
procedure in which he was killed. For the on-the-job stage of their training,
conductor trainees like Miller were assigned to a variety of jobs for a little over
three months, with different crews and conductors in charge of each job.
During the job briefing on the night of the accident, Sillimon, the senior
conductor and leader of the crew, did not provide Miller with any information
or instruction about rolling couplings or tell him that the crew would use a
rolling coupling at any location, and no one mentioned Miller’s lack of
experience or instructed him as to what he was expected to do or was
responsible for during a rolling coupling. As noted in AGS’s expert’s report, at
the worksite where Miller was killed, the crew first used a single car coupling
to connect the first uncoupled standing car on the track to the rest of the
train—once the first car was connected, the train stopped. A jury could infer
that Miller, because of his inexperience and lack of schooling, instruction and
training, would have expected the next coupling to be a single-car coupling as
well, after which the train would stop moving. However, Henderson called for
a rolling coupling, saying, “Everybody let me get a big half to a bunch,” a phrase
that would inform only knowledgeable workers—those familiar with a rolling
coupling and the terminology used to call for one—that Henderson was calling
for a rolling coupling of as many as ten cars. It is undisputed that this jargon
was not taught in the rulebook or classroom training and is instead something
that employees must pick up on from their work in the field. From the facts in
the record, a jury could find that Miller, who had been out of the classroom for
less than a month, did not know what Henderson’s instruction meant, and
therefore had no reason to understand that the train would not stop after
another coupling, but would continue rolling, impacting and coupling cars up
to the point where he was killed. A jury could conclude these failures by the
railroad and by Miller’s supervisors were also negligent.


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                                 No. 17-60817
      Moreover, Plaintiffs have consistently contended that Miller did not
know what a rolling coupling was, had not been informed that the maneuver
would be used at the work site, and was only familiar with the standard single-
car coupling procedure. AGS did not dispute any of these facts in the district
court or in its brief to this court. At oral argument before this court, however,
counsel for AGS cited to Sillimon’s deposition and contended that it showed
Miller had been exposed to a rolling coupling earlier on the night that he was
killed.
      I disagree with the defense counsel’s oral argument and the majority’s
contention that Sillimon’s deposition testimony provides conclusive evidence
that Miller had previously witnesses a rolling coupling earlier on the night he
was killed.   Maj. Op. at 7-9.    At the start of the relevant portion of the
deposition, Sillimon was answering questions about a job the crew worked the
night of the accident. He was then asked: “And how do y’all go about spotting
these cars? How do y’all handle that?” After an explanation of what the
brakeman and conductors typically do, Sillimon concluded: “He will make the
first coupling, and the rest of the couplings be run-in coupling.” Sillimon then
explained in general the process of a running or rolling coupling.
      The pretrial deposition does not specify that Sillimon, in speaking of
rolling couplings, was describing the process employed by the crew at a
different facility earlier on the night of the accident instead of simply
describing the process of a rolling coupling generally. Given the ambiguity of
the testimony and our obligation to resolve such ambiguity in Miller’s favor, I
would conclude that there is at least a genuine issue of material fact as to
whether Miller had seen a rolling coupling earlier in the evening on the night
of the accident. See Total E & P USA Inc., 719 F.3d at 429 (“[I]n reviewing the
summary judgment de novo, we must resolve all ambiguities, permissible


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                                   No. 17-60817
inferences, and material issues of fact in favor of the non-moving parties . . .
.”).
         Finally, Plaintiffs have presented evidence in opposition to AGS’s motion
for summary judgment that AGS employees failed to reasonably mentor or
supervise Miller. Though Sillimon was the senior conductor and Henderson
had only eight months of experience as a conductor, Sillimon put Henderson in
charge of mentoring and supervising Miller at the time of the accident.
Henderson had been cited five times for rules violations in 2015 and 2016. On
the night of the accident, when Henderson instructed the engineer to start the
rolling coupling, Henderson had his back turned toward Miller who was half a
car length away from Henderson. Henderson then walked backward, still
facing away from Miller, as the engineer proceeded to couple up three railroad
cars, all with Miller being out of Henderson’s eyesight. As Henderson turned
to face the south, he noticed a “flash” in his peripheral vision, providing further
evidence that Miller was out of Henderson’s sight and close supervision.
Together, these facts would support a reasonable jury in finding that
Henderson, for whose acts and omissions AGS is vicariously responsible, was
an inattentive and careless supervisor whose failure to mentor and supervise
Miller contributed to the accident that caused his death.
         The majority claims that “[t]here is no record evidence of any policy for
which a conductor-trainee must always be within view of their supervisor.”
However, Darren Gooch, a trainmaster who worked for AGS, testified that the
“rule” when supervising conductor trainees was to keep them “within sight
distance and close,” and Sillimon acknowledged in his deposition that when he
was a conductor-trainee, the brakeman or conductor kept him “within
eyesight.” This is an issue for the jury, who could reasonably conclude that
AGS was responsible for Henderson’s failure to mentor, closely supervise, and
watch Miller during the dangerous rolling coupling procedure.
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                                  No. 17-60817
                                       II.
        Though Miller may have been negligent in assuming only a single car
was to be coupled and in moving between the railcars without requesting 3-
Step Protection, it is well-established in FELA law that the railroad can still
be liable if its negligence contributed in part to the danger even when the
employee’s negligence was the more direct cause of the injury. McBride, 564
U.S. at 695 (rejecting the argument that “the railroad’s part . . . was too
indirect” a cause when compared to the employee’s negligence).              When
executing a single car coupling that Miller was taught in the classroom, the
engineer would stop after each coupling, and employees would go between each
of the newly coupled cars to turn on the air and check the connection for the
cars.    A reasonable jury could conclude, then, that due to his lack of
supervision, training, and experience, Miller went between the cars because he
did not understand that the crew was executing a rolling coupling and that the
impacts and movements of the rail cars would not stop after a single car had
been coupled.
        Though no case presents identical facts, the Supreme Court has required
the submission of FELA cases to juries based on even slighter proof of
negligence and causation. See Lavender v. Kurn, 327 U.S. 645, 648-49, 652
(1946) (circumstantial evidence that worker killed by skull fracture was struck
on head by mail hook swinging from side of railway company’s mail car was
sufficient for jury); Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 109-10,
122 (1963) (upholding a jury verdict for a plaintiff who lost both his legs as a
result of an infected insect bite because railroad was negligent in maintaining
a stagnant pool of water attractive to vermin and insects).
                                      ***
        The Supreme Court has instructed that “the test of a jury case [under
FELA] is simply whether the proofs justify with reason the conclusion that
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                                    No. 17-60817
employer negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.” Rogers, 352 U.S. at 506. “The
burden of the employee is met . . . when there is proof, even though entirely
circumstantial, from which the jury may with reason make that inference.” Id.
at 508. It is irrelevant that “the jury may also with reason, on grounds of
probability, attribute the result to other causes, including the employee’s
contributory negligence.” Id. at 506.
      Submission of a FELA case to the jury is required “in all but the
infrequent cases where fair-minded jurors cannot honestly differ whether fault
of the employer played any part in the employee’s injury.” Id. at 510. This
case is clearly not one of those rare cases in which every reasonable juror must
conclude that the employer’s negligence played no part—not even the
slightest—in the employee’s injury and death. See id.; McBride, 564 U.S. at
692. The majority opinion, in failing to account for the special features of
FELA’s negligence action that make it significantly different from the ordinary
common-law negligence action, contributes to the steady erosion and
undermining of the right to a jury trial under FELA in this Circuit. See also
Huffman v. Union Pac. R.R., 675 F.3d 412, 426, 433 (5th Cir. 2012) (Dennis,
J., dissenting) (“The evidence in this case is manifestly sufficient to meet the
test of a jury case under the FELA, which is simply whether employer
negligence played any part, even the slightest, in producing the injury.”). For
the foregoing reasons, I dissent.




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