(dissenting).
I am unable to agree that it was proper for the District Judge to tell the jury that any negligence of SUCO was imputable to defendant B. & 0. Since SUCO’s negligence had been conceded in defendant’s pleadings, the instruction given was equivalent to a directed verdict for plaintiff, subject only to the jury’s consideration of the amount of damages and any diminution thereof because of contributory negligence.
I recognize that a railroad will be liable to its injured employee through the negligence of a third party to whom it has entrusted the carrying on of its own operational activities. Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799. The rationale underlying the imposition of such liability is not that the activity performed by the third party is non-delegable but, rather, that a third party performing “operational activities” of the railroad is an “agent” of the railroad within the meaning of FELA. Consequently, since the terms of the statute impose liability upon a railroad for an injury or death to one of its employees resulting “from the negligence of any of the officers, agents, or employees” of such railroad, the railroad must pay the damages for the negligence of a third party performing the “operational activities” of the railroad. Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799. In the case before us, it was no part of the operational activities of the defendant for SUCO to dump ashes from its silo into its trucks. Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 398, 80 S.Ct. 789, 4 L.Ed.2d 820. Thus SUCO was not an “agent” of the defendant railroad within the meaning of FELA, and under the clear language of the statute, the defendant is not responsible for SUCO’s negligence.
It is, of course, correct to say that defendant’s duty to provide its employees with a safe place in which to work could not be delegated to SUCO. Likewise, the fact that the injury occurred on premises owned by a third party would not excuse the railroad for its negligence in failing to provide a safe working place. Atlantic Coast Line R. Co. v. Robertson, 214 F.2d 746, 751 (C.A.4, 1954); Terminal R. Ass’n of St. Louis v. Fitzjohn, 165 F.2d 473, 477, 1 A.L.R.2d 290 (C.A.8, 1948). These rules, however, do not justify a holding that whenever SUCO’s employees commit acts of negligence which cause injury to the railroad’s employees, the railroad will be held liable without any fault on its part. Negligence of the defendant, or of its “agents,” is still a necessary ingredient to recovery under FELA. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493, 500; Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1, 3, (C.A.7, 1952).
The instruction given in the District Court allowing the jury to impute SU CO’s negligence to the defendant has the effect of holding the defendant liable without any fault on its part. Such an instruction changes the scope and tenor of FELA from an act providing an employee of a railroad relief in the case of an injury caused “in whole or in part” by the railroad’s negligence, into a workmen’s compensation act, but without any of the limitations and safeguards found in such acts. Congress, in enacting FE LA, did not pass a workmen’s compensation law which would provide an employee with compensation for every injury incurred during the course of his *551employment without regard to any fault on his employer’s part. See, Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 509, 539-540, 77 S.Ct. 443, 1 L.Ed.2d 493, 501, 528-529.
Plaintiff’s argument here seeks to obtain the benefits of two disparate theories of liability without accepting the detrimental consequences attendant on either of them. Under FELA, the employer is stripped of his common law defenses, contributory negligence of the employee being only a factor in mitigation of damages. FELA, however, allows recovery only for the employer’s negligence. On the other hand, at common law, an employer will be held accountable for his employees’ injuries, strictly and without regard to any fault on his part, if such injuries are caused by the negligence of a third party to whom the employer has entrusted the performance of a non-delegable duty. Prosser, Handbook of the Law of Torts, 359 (2d Ed., 1955). But, in a common law action, the contributory negligence of the injured party, however slight, is a complete bar to his recovery. Since plaintiff’s decedent in the case before us was found guilty of some contributory negligence, it can be safely assumed that plaintiff wishes us to apply the common law doctrine of vicarious liability only to the extent that it renders defendant liable without fault. For the rest, plaintiff would have us apply FELA.
Plaintiff has cited no Supreme Court case to us in support of this proposition. The two cases cited in that connection are not authority for such a novel construction of FELA. In Baltimore & Ohio R. Co. v. Alpha Portland Cement Co., 218 F.2d 207 (C.A.3, 1955), plaintiff railroad sought to obtain indemnity from defendant industry for an amount which the railroad had paid in settlement of an employee’s claim for damages. The injury occurred on defendant’s premises. No question was raised concerning plaintiff’s liability. However, in affirming the judgment of the District Court’s award of indemnity, the court noted that the trial judge had found the plaintiff railroad guilty of negligence, and that “its negligence * * * (was) merely the breach of its nondelegable duty to furnish a safe place for its employee to work, even though the place became unsafe through the act of a third party and without fault on its part.” 218 F.2d at 210.
That is not the instruction given in the case before us. The trial judge here did not qualify his charge by saying, “If you find that the defendant did not exercise reasonable care in furnishing its employee with a safe place in which to work by entrusting the maintenance of the SUCO track and siding to SUCO, you may find the defendant guilty of negligence.” The charge given operated to relieve plaintiff of her burden of proving defendant’s lack of reasonable care — its negligence — and so was prejudicial. The other case relied upon by plaintiff, Kennedy v. Pennsylvania Railroad Company, 169 F.Supp. 406 (W.D.Pa., 1959) reversed 282 F.2d 705 (C.A.3, 1960), was also primarily concerned with the question of indemnity. While in the District Court’s opinion there is language which might support plaintiff’s position (169 F. Supp. p. 410), it does not appear that the trial judge there gave such an instruction to the jury. The case was submitted on interrogatories which were couched in terms of the railroad’s negligence, rather than vicarious liability. 282 F.2d 708.
To summarize: It was the duty of the B. & O. to see to it that the SUCO siding was maintained in such a way as to provide its employees with a safe place to work. If it negligently ' failed to discharge such duty, it could not excuse its own negligence by saying that it had delegated such duty to another. But, if a railroad fully discharges its duty to maintain a safe place for its employees, it will not vicariously or by imputation be charged with the positive and unexpected negligence of another, unless the railroad has actual or constructive knowledge of the unsafe condition and does nothing about it. Kaminski v. Chicago River & Indiana R. Co., supra; Wether-*552bee v. Elgin, Joliet & Eastern Ry. Co., 191 F.2d 302 (C.A.7, 1952); Denver & Rio Grande R. Co. v. Conley, 293 F.2d 612, 613 (C.A.10, 1962). To hold otherwise would be to make the railroad an insurer of the safety of its employees, a duty not imposed on it by FELA. Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198.
With the exception of the language in the Third Circuit cases cited above, none of the decided cases impose absolute liability on a defendant railroad for an injury occurring on another’s premises in the absence of facts indicative either of actual knowledge or constructive knowledge of the unsafe condition. Kaminski v. Chicago River & Indiana R. Co., supra; Wetherbee v. Elgin, Joliet & Eastern Ry. Co., supra; Denver & Rio Grande R. Co. v. Conley, supra; Atlantic Coast Line R. Co. v. Robertson, supra; Terminal R. Ass’n of St. Louis v. Fitzjohn, supra. Such a requirement is entirely reasonable and consistent with the policy of FELA which is to impose liability on a railroad for its own negligence and not for that of others, except its “agents.” In the case before us, there was evidence from which the jury could find that the ash accumulation which caused the derailment was the result of a single and unusual act of negligence by SUCO and that the railroad had not had reasonable opportunity to discover it and require its removal.
This dissent is not from the District Judge’s submission of the question of the railroad’s own negligence, but from his unqualified statement that negligence of SUCO’s employees in the maintenance of SUCO’s track was to be imputed to defendant.
I feel it appropriate, also, to express my own view of the District Court’s refusal to advise the jury that its award of damages would not be subject to Federal income tax. The proffered instruction was as follows:
“I charge you as a matter of law that any award made to Plaintiff in this case, if any is made, is not income to the Plaintiff within the meaning of the Federal Income Tax Law. Should you find that Plaintiff is entitled to an award of damages, then you are to follow the instructions already given by this Court in measuring those damages, and in no event should you either add to or subtract from that award on account of Federal Income Taxes.”
I would question the propriety and necessity of giving such instruction in its entirety, but wish to record my opinion that a short statement that the plaintiff will not be required to pay income tax on the amount awarded, should be made to the jury in this kind of case. This Court in New York Central Railroad Company v. Delich, 252 F.2d 522, 527 (C.A.6, 1958) held that it was not error in a death case to refuse to charge that “If you should find in favor of the plaintiff, I warn you not to consider income tax liability on your award.” Such a cryptic warning was not equivalent to a simple and clear statement that a plaintiff’s award is not subject to income tax. It would tend to obscure, rather than disclose the truth. I do not consider that decision at variance with my position here. I realize that the giving of an instruction that would require the jury to consider what income tax a deceased or injured plaintiff may have paid out of past earnings or what would be the likely income tax impact on future earnings, could lead to confusion. There is no reason, however, to fear confusion from a simple statement that a plaintiff’s judgment in such damage case will not be diminished by the imposition of income tax.
Our contemporary public mind is well conditioned to the belief that, today, there is almost nothing of money value which anyone receives that is not shared in substantial degree with the national government. As pointed out by Chief Judge Lumbard in his dissent in McWeeney v. *553N. Y., N. H. & H. R. Co., 282 F.2d 34, 41 (C.A.2, 1960), the public today reads of the rather spectacular share that the government takes of large sums “won on television quiz programs or in lotteries and sweepstakes.” The public is informed of the amount that is taken in income taxes from large salaries paid to business executives, stars of the entertainment world and other large earners, and the amounts that are taken in taxes from decedent’s estates. Have we any assurance that today’s juries, awarding verdicts in the range of the one before us, $136,267.23, are aware that, unlike almost any other receipt of money, they are tax free? I would venture a guess that a substantial number of lawyers (excluding those engaged in the personal injury business) would be unsure of the tax consequences of receiving a $100,-000.00 personal injury verdict. Should we expect jurors to be better informed?
Some of the cases considering the subject merely hold that it would not be error to give a simple instruction on the point but, as plaintiff argues here, hold that the matter should be left to the trial judge’s discretion. See, McWeeney v. N. Y., N. H. & H. R. Co., supra, p. 39. I do not think we can so easily dispose of the subject. I grant, as stated above, that jurors’ deliberations might be impeded if they were required, in computing past earnings and calculating loss of future earnings, to guess as to past or future tax rates and regulations. Simple advice, however, that their present award will not be reduced by income tax does not have such vice. If, as seems to be conceded, no prejudice will be visited upon a plaintiff by such advice, why withhold it ? In my opinion, serious harm can result to a defendant from jurors’ lack of information in this field. They should know the truth. Except for the loss of unfair advantage, plaintiffs will not suffer from a jury knowing such truth. I consider it reversible error to refuse a simple instruction on the subject.
I would reverse the judgment and order a new trial.