In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2310

FRANK T. COFFEY,

Plaintiff-Appellant,

v.

NORTHEAST ILLINOIS REGIONAL COMMUTER

RAILROAD CORPORATION (METRA),

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3621—Charles R. Norgle, Sr., Judge.

____________

ARGUED FEBRUARY 13, 2007—DECIDED MARCH 9, 2007

____________

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The plaintiff, who worked as an

engineer for a commuter railroad, brought suit against his

employer, charging negligence under the Federal Employers Liability Act, 45 U.S.C. §§ 51-60, plus a violation of the

Locomotive Inspection Act, 49 U.S.C. §§ 20701-20703 (such

a violation is negligence per se under the FELA). Early one

morning, when it was still pitch dark, the plaintiff had

climbed into the driver’s cab of the train and (according to

his version of the accident, which the procedural posture
2 No. 06-2310

of the case—the district court granted summary judgment

for the defendant—requires us to credit), while reaching

for the light switch, bumped his forehead against the sun

visor, which was in a horizontal position rather than, as it

should have been, turned up so that it was flush with the

wall above the cab’s windshield. He alleges improbably

that he sustained serious injuries from the bump, even

though it didn’t prevent him from driving the train to its

destination.

The case is remarkable chiefly for the lack of investigation by the plaintiff’s lawyer. He never bothered to determine what the visor is made of (his client didn’t know,

beyond saying that it was “very hard” and was “probably

metal”), its weight and dimensions, what its padding

was made of and how thick the padding was (the plaintiff

testified that it was “real thin”); the distance between the

visor’s edge and the seated engineer; and whether the light

switch was so placed that in groping for it the engineer

would be likely to thrust his head forward and hit the

visor. The defendant’s expert estimated that the plaintiff’s

head would have been 11.5 inches from the visor when he

was where he said he was in the compartment, and the

expert speculated that what really had happened was that

the plaintiff had tripped over the workbag that he had

carried with him into the cab and had fallen against the

visor—which was what the plaintiff said had happened

when he first reported the accident.

His lawyer conjectured that the bolts that fasten the visor

to the wall had been loosened as a result of the train’s

vibration and the loosening had caused the visor to descend halfway so that it was pointing at the driver’s head.

The conjecture is implausible, though not quite so outlandish that it can be rejected as a matter of law. But pretty
No. 06-2310 3

outlandish—a lack of friction due to the bolts’ being loose

should result, once the train’s vibration started the visor

on its downward journey, in its descending all the way; for

it to stay in the horizontal position there would have to

be enough friction to support the visor’s weight, since if

there wasn’t the visor wouldn’t stop in the middle.

The lawyer made no request to inspect the visor. He did

ask a Metra foreman whether there had been “any kind of

repair or modification” of the cab after the plaintiff reported the injury. The foreman replied that there hadn’t

been any repair that he was aware of, the inspection of the

visor after the accident having revealed no defects in it. The

plaintiff testified that the visor moved “fairly easily.” But

this does not imply that it was so loose that it would

tumble down all by itself—and stop before it was all the

way down.

Nor did the lawyer make any effort to find the engineer

who had last driven the train from that cab. (The train has

cabs at either end from which it can be operated.) Suppose

that driver had left the visor in the horizontal position,

not realizing or perhaps not caring that it would pose a

hazard to the next driver if, as happened, the next driver

entered the cab while it was still dark outside. (That is a

likelier explanation of its position than the loose-bolts

theory.) Then, since the FELA abolishes the “fellow

servant” rule of the common law of industrial accidents, 45

U.S.C. § 51; Lancaster v. Norfolk & Western Ry., 773 F.2d

807, 817-18 (7th Cir. 1985), the earlier driver’s negligence

would be imputed to the railroad.

The lawyer failed to explore still another possible theory

of liability. A visor that drops down without being moved

because it is too loosely fastened is a menace because it

can distract the engineer by suddenly falling and blocking
4 No. 06-2310

part of his visual field, as in Moan v. Aasen, 31 N.W.2d 265,

265-66 (Minn. 1948), and Sodemann v. Chicago, Milwaukee,

St. Paul & Pacific R.R., 244 N.W. 865, 866 (Iowa 1933). Even

if the engineer’s bumping his head against the jutting

visor was so unlikely to happen, or so unlikely if it did to

hurt him, that the railroad had no duty to take precautions

against such an accident, the fact that the railroad did have,

and failed to perform, its duty to prevent the visor from

dropping down suddenly and thus distracting the engineer

could entitle a bumped engineer to a judgment. The

accident would on that assumption have been averted

had the railroad complied with its duty of care; and as

between the careless railroad and the engineer (who

would not be barred from recovery even if contributorily

negligent, 45 U.S.C. § 53), it might well seem that the loss

from the accident should fall on the railroad. The common

law rule is that even a negligent injurer is liable only for

injuries that he should have anticipated and guarded

against, and not for injuries that would have been

serendipitously prevented had he satisfied his duty of

care, as in our recent case of Shadday v. Omni Hotels Management Corp., No. 06-2022, 2007 WL 509679, at *6-7 (7th

Cir. Feb. 20, 2007); see also Carter v. United States, 333 F.3d

791, 797 (7th Cir. 2003), and cases cited there. But the

Supreme Court has rejected the application of this rule to

FELA cases. Kernan v. American Dredging Co., 355 U.S. 426,

438-39 (1958).

As framed by the plaintiff’s lawyer, however, the issue

of negligence in this case comes down to whether the

railroad was negligent in failing to protect its engineers

from the risk of colliding with a visor that dropped

down into the horizontal position as a result of not being

fastened tightly enough. Although the FELA is often said
No. 06-2310 5

to require only slight evidence of negligence, e.g., Mendoza

v. Southern Pacific Transportation Co., 733 F.2d 631, 632-33

(9th Cir. 1984), that is not what the statute says; and as the

Supreme Court reminded us just weeks ago: “Absent

express language to the contrary, the elements of a FELA

claim are determined by reference to the common law.”

Norfolk Southern Ry. v. Sorrell, 127 S. Ct. 799, 805 (2007); see

also id. at 807; Page v. St. Louis Southwestern Ry., 349 F.2d

820, 823 (5th Cir. 1965).

It’s true that the FELA makes the railroad liable for

“injury or death resulting in whole or in part from the

negligence” of the railroad or its employees, 45 U.S.C. § 51

(emphasis added), and this has been interpreted to mean

that the railroad is liable if “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.” Rogers v. Missouri Pacific R.R., 352

U.S. 500, 506 (1957) (emphasis added); see also Walker v.

Northeast Regional Commuter R.R., 225 F.3d 895, 897 (7th Cir.

2000). “The fact that there may have been a number of

causes of the injury is . . . irrelevant as long as one cause

may be attributable to the railroad’s negligence.” Heater v.

Chesapeake & Ohio Ry., 497 F.2d 1243, 1246-47 (7th Cir.

1974). A concurring opinion in the Sorrell case suggests

that Congress’s only purpose in specifying “in whole or

in part” was to make clear that a railroad would be liable

if it was negligent even if the injured worker had been

much more negligent. Norfolk Southern Ry. v. Sorrell, supra,

127 S. Ct. at 810-11. A similar case, however, would be

that of joint tortfeasors of unequal responsibility, as when

one railroad creates a hazard that the second, the defendant, fails through negligence to detect, cf. Webb v. Illinois

Central R.R., 352 U.S. 512 (1967); and even if the hazard had
6 No. 06-2310

been innocently created, still the negligent failure to detect it would make the defendant liable.

We needn’t plumb the mysteries of causation in FELA

cases more deeply. The essential point is simply that

causation and failure to exercise due care are separate

inquiries, and the relaxation of common law standards

of proof applies to the first rather than to the second. Still,

it is possible to tell a story in which the horizontal position

of the visor in this case was a result of the railroad’s

negligence in failing to tighten the bolts. And then it

wouldn’t matter if as is likely the plaintiff tripped over

his own workbag and fell against the visor; it wouldn’t

matter even though in that event his own clumsiness or

inattention might be thought the principal cause of

his injury, especially since if the visor had been in its

upright position he might have hit his head against the

windshield instead, with equally grave or even graver

consequences.

Because the engineer often enters the cab when it is too

dark to see the interior, and the light switch is inside the

cab, there is a danger that before he can find or turn on the

light he’ll collide with any object that protrudes into the

cab’s interior. The visor could be such an object if because

its bolts were loose the natural vibration of the train had

caused it to descend to the horizontal position. Maybe

it could even be argued that since that position has no

possible utility—a visor horizontal to the window will be

above it and not block any light—the position itself is

evidence of negligence, whether the visor came to be in

that position because of the carelessness of the previous

driver or the loosening of the bolts by vibration. The train

had been driven from its other end between the time when

the previous driver left the cab and the time when the

plaintiff entered it, so the visor might have slid down
No. 06-2310 7

between the departure of the previous driver and the

arrival of the plaintiff.

The missing links in the plaintiff’s negligence case are

evidence of the proximity of the visor in its horizontal

position to the driver’s head when he is groping for the

light switch, and the weight and padding of the visor. If

the visor is light and well padded, like the sun visor of an

automobile, the railroad would have no reason to anticipate that bumping one’s head on it would cause an injury

and that therefore precautions should be taken to make

sure the visor is never in the horizontal position. Perfunctory investigation by the plaintiff’s lawyer would have

filled in these missing links, but none was ever conducted.

The record contains no plan of the cab, and though there

are photos they don’t reveal the layout. Nor are the essential dimensions of the cab and the visor in the record. The

plaintiff, in short, has failed to make a prima facie case of

negligence.

But we must consider the bearing of the Locomotive

Inspection Act (formerly the Boiler Inspection Act). The Act

requires that the driver’s cab be free of conditions that

endanger the crew. 49 U.S.C. § 20701(1); Lilly v. Grand

Trunk Western R.R., 317 U.S. 481, 485-87 (1943); McGinn v.

Burlington Northern R.R., 102 F.3d 295, 298-99 (7th Cir.

1996); Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088, 1091

(4th Cir. 1987). And although the Act does not create a right

to sue but merely establishes a safety standard, the failure

to comply with that standard is negligence per se under the

FELA. Urie v. Thompson, 337 U.S. 163, 188-89 and n. 30

(1949); McGinn v. Burlington Northern R.R., supra, 102 F.3d

at 298-99; Lisek v. Norfolk & Western Ry., 30 F.3d 823, 825-26

(7th Cir. 1994). That means that the plaintiff “is required to

prove only the statutory violation and thus is relieved of
8 No. 06-2310

the burden of proving negligence.” Crane v. Cedar Rapids &

Iowa City Ry., 395 U.S. 164, 166 (1969). He still has to prove

a causal relation between a violation and the injury for

which he is suing, but there he gets the benefit of the “in

whole or in part” language of the FELA. Id.

As far as concerns this case, the Locomotive Inspection

Act merely requires that the cab be safe; and that is no

different from what the FELA would require by itself. But

the plaintiff cites several regulations under the Locomotive Inspection Act, and a violation of such a regulation

would be negligence per se, just like a violation of the Act

itself. Lilly v. Grand Trunk Western R.R., supra, 317 U.S. at

485-86; McGinn v. Burlington Northern R.R., supra, 102 F.3d

at 299; see also Herold v. Burlington Northern, Inc., 761 F.2d

1241, 1246 (8th Cir. 1985). One of the regulations merely

repeats what the statute says—that the cab must be safe,

49 C.F.R. § 229.45. Another, more promisingly, requires

that sharp edges inside the cab be eliminated or padded,

49 C.F.R. § 238.233(e), but this regulation didn’t go into

effect until long after the cab car was placed in service,

and it is inapplicable, “Section 238.233 Interior Fittings

and Surfaces,” 64 Fed. Reg. 25540, 25614 (May 12, 1999)—

and anyway the visor was padded.

A third regulation requires the cab to “have a conveniently located light that can be readily turned on and off

by the persons operating the locomotive and that provides

sufficient illumination for them to read train orders and

timetables.” 49 C.F.R. § 229.127(a). It is unclear whether

this is a reference to the kind of light that the plaintiff

was groping for. The regulation refers to other lights as

well, but they are “cab lights which will provide sufficient

illumination for the control instruments, meters, and

gauges to enable the engine crew to make accurate read-
No. 06-2310 9

ings from their normal positions in the cab. These lights

shall be located, constructed, and maintained so that light

shines only on those parts requiring illumination and

does not interfere with the crew’s vision of the track and

signals.” Id. So the regulation may not refer to “his” light

at all. Still, under the Locomotive Inspection Act itself,

without regard to the regulation, if the light switch was

in an “inconvenient” place and hence “can[not] be readily

turned on and off” and as a result would contribute to the

injury if its placement created a risk to the engineer of

bumping his head on the visor while reaching for the

switch, the plaintiff might have a case. But he hasn’t

shown this. So he loses.

The case illustrates the curious and deplorable aversion

of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more

informative than a verbal description. We have noted

this aversion in previous cases, United States v. Boyd, No.

06-2431, 2007 WL 219940, at *3 (7th Cir. Jan. 30, 2007); Miller

v. Illinois Central R.R., 474 F.3d 951, 954 (7th Cir. 2007);

United States v. Barnes, 188 F.3d 893, 895 (7th Cir.

1999)—once remarking that some lawyers think a word is

worth a thousand pictures. Id. A wide-angle photo of the

cab (showing its layout)—or better, because an angle

wide enough to take in the whole cab would create distortion, a schematic diagram or blueprint with the dimensions indicated—would have revealed at a glance

whether the visor in a horizontal position, in juxtaposition with the location of the light switch, created a significant risk of the engineer’s bumping his head. And information on the weight of the visor and the material and

thickness of the padding would have revealed whether the

potential for injury that was created by its being in a
10 No. 06-2310

horizontal position was sufficiently great to require the

railroad to take precautions against its ever being in that

position.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-9-07