Dissent.
I respectfully dissent. The majority holds that the railroad’s duty is to provide a reasonably safe place in which to work, and that it is the plaintiff’s burden in a FELA case to prove that the railroad breached that duty. With that I certainly agree. But the majority opinion, as I understand it, holds that because the railroad does not deny that second-hand smoke is harmful, the plaintiff has no duty to provide any evidence either of what the level of second-hand smoke was in the areas where plaintiff was exposed to it, or of the level of second-hand smoke which would cause the workplace not to be reasonably safe.
There is no question that FELA imposes on the railroad a duty to provide a reasonably safe place for its employees to *979work. In my view, unless the railroad’s safety rule prohibiting smoking operates as a matter of law to define a “reasonably safe place to work” as a place with no second-hand smoke — a proposition for which I have found no authority — or, unless a workplace is not reasonably safe if a condition exists therein which adversely affects even one individual employee — a proposition for which I have found no federal court authority — the burden still remains with the plaintiff to demonstrate that the place in which he worked was not reasonably safe for the railroad’s employees. Here, the plaintiff was required to show that because of the second-hand smoke, the workplace of which he complains was not reasonably safe for the railroad’s employees. I believe the district court correctly concluded that because the plaintiff failed — twice — to provide any evidence whatsoever of the effect of secondhand smoke on human health and safety in general, no genuine issue remained for trial with regard to whether the workplace was reasonably safe for the railroad’s employees. In the absence of evidence that the workplace was not reasonably safe for the employees, there is no evidence that the railroad breached its duty to provide a reasonably safe workplace for the employees, an element of negligence on which the majority opinion concedes the plaintiff in an FELA case has the burden of proof. I would affirm the district court’s order granting summary judgment to CSX Transportation, Inc.