The word knew is a common term. These terms and their meaning are significant because the FELA is not a strict liability statute. Rather, negligence of the employer must be established to support any judgment. 55 Ill. App. While the foreseeability of harm is a matter for proof, this does not mean that the proof must be direct.
Circumstantial evidence is sufficient.
Proof of actual knowledge of the dangerous condition is not required. The only showing that must be made is that the defendant could or should have known of the dangerous condition. See Qualls v. St. Louis Southwestern Ry. This tendency to use the words could or should interchangeably may result in vastly different outcomes, depending on the word chosen. What an employer could discover may be different from what it should discover.