                                                                  Filed:   September 29, 1998

                               UNITED STATES COURT OF APPEALS

                                   FOR THE FOURTH CIRCUIT


                                         No. 97-2731
                                      (CA-96-3525-WMN)



Dennis Deans,

                                                                      Plaintiff - Appellant,

                versus


CSX Transportation, Incorporated,

                                                                       Defendant - Appellee.



                                         O R D E R



      The court amends its opinion filed August 11, 1998, as follows:

      On page 4, second full paragraph, line 11 -- the comma after the word "use" is

changed to a period.     The word "such" is changed to begin with a capital letter:       "...

not ‘in use’).    Such a distinction ...."

                                                                For the Court - By Direction



                                                                 /s/ Patricia S. Connor
                                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DENNIS DEANS,
Plaintiff-Appellant,

v.
                                                                      No. 97-2731
CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-96-3525-WMN)

Argued: June 5, 1998

Decided: August 11, 1998

Before WIDENER, ERVIN, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Ervin wrote the opinion, in which Judge Widener and
Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Alan Katz, COFFEY & KAYE, Bala Cynwyd,
Pennsylvania, for Appellant. Stephen Bennett Caplis, WHITEFORD,
TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for Appellee.
ON BRIEF: Joseph A. Coffey, Jr., COFFEY & KAYE, Bala Cyn-
wyd, Pennsylvania, for Appellant. Douglas F. Murray, WHITE-




                                                           - 2 -
FORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for
Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Dennis Deans, who was injured while working as a conductor for
defendant CSX Transportation, Inc. ("CSX"), appeals the district
court's grant of summary judgment against him on his claims under
the Federal Safety Appliances Act ("FSAA"), 49 U.S.C. § 20301 et
seq., and the Federal Employers' Liability Act ("FELA"), 45 U.S.C.
§ 51 et seq. We reverse in part, affirm in part, and remand for further
proceedings consistent with this opinion.

I.

On June 10, 1995, Deans and his engineer were assigned to take
a train from Grafton, West Virginia to Cumberland, Maryland. When
Deans arrived at the Grafton East Yard, the railroad cars making up
the train were already coupled together. Before the train could leave
for Cumberland, however, Deans still had three tasks to accomplish:
couple the engines to the railcars, release the hand brakes that were
on the railcars, and conduct a pre-departure air brake test.

Deans successfully coupled the engine to the railcars and then,
prior to conducting the air brake test, he attempted to release the hand
brakes. He released the hand brakes on the first one or two cars with-
out incident, but when he pulled the hand brake on a coal hopper,
nothing happened. Deans then went on to release the hand brakes on
the remaining few cars before making a further attempt to release the
brake that was stuck. On his fourth attempt to release the hand brake,
Deans felt a jolt in his neck and spine. The brake, however, still failed
to release. The defective car was removed from the train, the air brake
test was performed, and Deans proceeded to help take the train from
Grafton to Cumberland. When the train arrived in Cumberland, Deans
asked to be taken to the hospital due to the pain from his injuries.
CSX subsequently inspected the hand brake and found it to be defec-
tive.

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Deans alleges that he has suffered permanent back and neck inju-
ries as a result of the accident. He filed suit against CSX, alleging that
CSX was liable for his injuries under the Federal Safety Appliances
Act, for requiring him to work with a defective railcar, and that CSX
was negligent in failing to provide him with a safe workplace pursu-
ant to the Federal Employers' Liability Act. CSX filed a motion for
summary judgment, which the district court granted on the grounds
that the railcar on which Deans was injured was not "in use" at the
time of the accident, as required under the FSAA, and that Deans had
provided no evidence that CSX was negligent, as required to establish
a claim under FELA. This appeal followed.

II.

Deans argues that the district court erred in concluding, as a matter
of law, that the railcar upon which he was injured was not "in use"
for purposes of the Federal Safety Appliances Act at the time of his
accident. Because we find that the railcar was indeed "in use" at the
time Deans was injured, we reverse the district court's grant of sum-
mary judgment on the FSAA claim.

The Safety Appliances Act imposes absolute liability on railroad
carriers for violations of the Act's safety standards. Crane v. Cedar
Rapids & I.C. Ry., 395 U.S. 164, 166 (1969). One of these applicable
standards states that:

          [A] railroad carrier may use or allow to be used on any of
          its railroad lines --

           (1) a vehicle only if it is equipped with --

          (B) ... efficient hand brakes....

49 U.S.C. § 20302(a). Absolute liability under the Act only attaches,
however, if the train is "in use" at the time of the accident. See
Trinidad v. Southern Pacific Transp. Co., 949 F.2d 187, 188 (5th Cir.
1991) (looking at earlier version of Safety Appliances Act, 45 U.S.C.
§ 1 et seq. (repealed 1994)); see also Angell v. Chesapeake & Ohio
Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980) (referring to substantially

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                                                                - 4 -
similar "in use" requirement of Boiler Inspection Act, 45 U.S.C. § 23
(1994)). Because the facts surrounding the accident are not in dispute,
whether the train may be deemed to have been "in use" at the time
of the accident for the purposes of the FSAA is a question of law for
a court to decide rather than a question of fact for a jury, Angell, 618
F.2d at 262; see also McGrath v. Consolidated Rail Corp., 136 F.3d
838, 842 (1st Cir. 1998) (referring to Boiler Act), and this court there-
fore reviews the district court's conclusion de novo, see Williams v.
Dep't of Veterans Affairs, 104 F.3d 670, 673 (4th Cir. 1997).

One might think that determining whether a train is"in use" would
be a fairly straightforward exercise. In actual practice, however, it is
anything but clear where to draw the line for purposes of the FSAA.
Faced with this difficulty, the district court looked to the analysis set
out by the Fifth Circuit in Trinidad v. Southern Pacific Transporation
Co., 949 F.2d 187 (5th Cir. 1991), in which a carman was injured
while performing the final steps of a routine brake inspection that was
required before the train could be turned over to the conductor. Rely-
ing on the fact that the train had not been released for travel because
the required inspections had not yet been completed, the Trinidad
court found that the train was not "in use" at the time of the carman's
accident. Id. at 189. In reaching its decision, the Trinidad court distin-
guished its facts from Angell v. Chesapeake & Ohio Railway Co., 618
F.2d 260 (4th Cir. 1980), in which this court found a train engine to
be "in use" because the engine had already passed inspection and been
"okayed" for service. Trinidad, 949 F.2d 189.

Analogizing the facts in this case to Trinidad, the district court
noted that the air brake test had yet to be completed at the time of
Deans's injury and no movement of the train was imminent, and
therefore concluded that the train that injured Deans was not "in use"
at the time of the accident. J.A. at 116. This focus on the completion
of the air brake test suggests that the district court sought to draw a
useful and practical, bright-line distinction between trains which have
had their pre-departure inspections and tests completed and been
okayed for service (and are therefore "in use"), and those for which
pre-departure tests have not yet been completed (and therefore not "in
use"). Such a distinction is too facile to accurately reflect the multi-
tude of steps required -- and various sequences in which these steps
may be taken -- to prepare a train for departure. For example, while

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the district court here concluded that the train was not "in use" at the
time of Deans's injury because the train would not be "okayed" for
service until the air brake test was completed and, at the time of the
accident that had not yet been done, the record shows that there is no
relationship between the release of the hand brakes, during which
activity Deans was injured, and the performance of the air brake test;
it apparently does not matter whether the hand brakes were released
before the air brake test was run. See Deans Dep. at 27, in J.A. at 38
(Q: "Could you have done the air test first and then released the brake
second?" A: "I could have."). Therefore, under the district court's
analysis, the train here -- which had already passed its required
inspections -- would have been okayed for service and hence "in use"
if Deans had simply chosen to conduct the air brake test prior to
releasing the hand brakes.

It is inappropriate to base liability under the FSAA on the mere
happenstance of whether an employee chooses to release the hand
brakes or conduct an air brake test first, however, and we believe a
more consistent and fairer result is reached by looking at a number
of different factors, rather than simply at the completion or non-
completion of pre-departure tests. Therefore, to determine whether a
train is "in use" for purposes of the FSAA, the primary factors we
consider are where the train was located at the time of the accident
and the activity of the injured party. Cf. Pinkham v. Maine Cent. R.R.
Co., 874 F.2d 875, 882 (1st Cir. 1989) (stating that these were "deter-
minative factors" in deciding whether train was in use for Boiler Act
purposes).

A train may still be considered "in use" even though it is motion-
less and not yet on the main track. Brady v. Terminal R.R. Ass'n, 303
U.S. 10, 13 (1938). In this case, although the train had not yet begun
moving on the main track, it had already had its engine coupled to it
and was standing on a track in the rail yard in preparation for immi-
nent departure -- not in storage or waiting to be moved into a repair
location. The train here was therefore even closer to actual motion
than the train found to be "in use" in Angell, where the employee was
injured as he was moving an engine in order to couple it to a train to
be moved a few hours later. 618 F.2d 262.

Furthermore, Deans, as a conductor, was part of the transportation
crew and in no way involved in the repair or maintenance of the train.

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                                                              - 6 -
It was his job to help put the train into motion and, at the time of his
injury, he was attempting to release the hand brakes to do exactly that.
The fact that the air brake test still needed to be completed, a test that
could have been completed prior to the release of the hand brakes, is
not in this case dispositive. Cf. McGrath v. Consolidated Rail Corp.,
136 F.3d 838, 842 (1st Cir. 1998) (finding train "in use" even though
all pre-departure inspections not yet completed because injured
employee's inspection duties were "incidental to[the employee's]
task of operating the train as an engineer" (citations omitted)); see
also Angell, 618 F.2d at 262 (holding train could be "in use" even
before engineer took the controls). We therefore hold, as a matter of
law, that the train was "in use" at the time of Deans's injury and
reverse the district court's grant of summary judgment on Deans's
FSAA claim.

III.

Deans also contends that the district court erred in granting sum-
mary judgment to CSX on his Federal Employers' Liability Act
claim, arguing that the carrier had an affirmative duty to inspect the
hand brake before his injury and its failure to do so was negligent.
Summary judgment is appropriate when, viewing the evidence in the
light most favorable to the nonmovant, there remains no genuine issue
as to any material fact. See Fed. R. Civ. P. 56(c); Henson v. Liggett
Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). As a question of law,
we review the district court's grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988).

FELA provides, in pertinent part, that "[e]very common carrier by
railroad ... shall be liable in damages to any person suffering injury
while he is employed by such carrier in [interstate] commerce," 45
U.S.C. § 51, and grants compensation to railroad employees for work-
related injuries if "such injury or death [results] in whole or part from
the negligence of any officers, agents, or employees of such carrier,
or by reason of any defect or insufficiency, due to its negligence, in
its cars, engines, appliances, machinery, track ... or other equipment,"
id. However, while it is true that FELA imposes on the railroad carrier
a duty to take reasonable precautions to inspect the workplace and
protect its employees from possible danger, see Brown v. CSX

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Transp., 18 F.3d 245, 249 (4th Cir. 1994), the plaintiff still carries the
burden of proving some act of negligence by the carrier, see Hurley
v. Patapsco & Black Rivers R.R. Co., 888 F.2d 327, 329 (4th Cir.
1989).

The only evidence that Deans has produced of CSX's negligence
here is the fact that a post-injury inspection of the hand brake demon-
strated that it was defective and his assertion that "the same inspec-
tion, performed before [he] was required to use defective equipment,
would have prevented his crippling injury." Appellant's Br. at 29.
Deans introduced no evidence to show that an earlier inspection
would have revealed or cured the problem with the hand brake, or that
the railroad had notice of the defect prior to the accident. As a conse-
quence of this lack of evidence, any suggestion that CSX was negli-
gent rests on mere speculation and conjecture, and the district court
therefore properly granted summary judgment against Deans on his
FELA claim. See Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810,
818 (4th Cir. 1995) ("It is the duty of the Court to withdraw the case
from the jury when [the plaintiff's contention] is so tenuous that it
rests merely upon speculation and conjecture."); Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party ... cannot create
a genuine issue of material fact through mere speculation or the build-
ing of one inference upon another.").

IV.

Because we find that the train on which Deans was injured was "in
use" for the purposes of the FSAA, we reverse the district court's
grant of summary judgment on his FSAA claim. We affirm summary
judgment on Deans's FELA claim, however, because Deans failed to
establish a genuine issue of material fact that CSX's negligence led
to his injury.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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