Penn v. Chicago & NW Ry. Co.

• Citation: 163 F.2d 995
• Decision Date: 03 December 1947
• Docket Number: No. 9253.,9253.
• Parties: PENN v. CHICAGO & N. W. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

163 F.2d 995 (1947)

PENN v. CHICAGO & N. W. RY. CO.

No. 9253.

Circuit Court of Appeals, Seventh Circuit.

November 6, 1947.

Rehearing Denied December 3, 1947.

Drennan J. Slater, James B. O'Shaughnessy, and Lowell Hastings, all of Chicago, Ill., for appellant.

Royal W. Irwin, of Chicago, Ill., for appellee.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This appeal is from a judgment in plaintiff's favor, entered October 10, 1946, in a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., based on an alleged violation of the Federal Safety Appliance Act, 45 U.S.C.A. § 2, which requires a railroad engaged in interstate commerce to equip its cars with couplers "which can be uncoupled without the necessity of men going between the ends of the cars."

The complaint, at the time the case went to the jury, contained the single charge that the defendant "carelessly, negligently and unlawfully equipped and maintained on said car a defective coupler in that the same could not be uncoupled by means of the pin lifter, contrary to the provisions of the Federal Safety Appliance Act."

Two grounds are urged for reversal, (1) that the court erroneously refused to direct a verdict in favor of the defendant, and (2) that the jury was improperly instructed.

In reviewing the action of the lower court in refusing to direct a verdict, we must, of course, consider the evidence in the light most favorable to the plaintiff's case. Here, the plaintiff was the sole occurrence witness offered in his behalf. The record contains no direct evidence of any defect in the coupler mechanism, and any defect which existed must be inferred from the circumstances as related by the plaintiff.

At the time of the accident resulting in plaintiff's injury, the defendant was engaged in classifying cars. Plaintiff was a brakeman and it was his duty to uncouple cars so that they might be shunted onto various tracks in the yard. The car to be uncoupled was equipped with the usual automatic coupler, operated by a rod about four and one-half feet long, with the outside end bent to form a handle. Shortly prior to the accident, plaintiff mounted the car next to the one to be uncoupled, standing on the stirrup. He states that while thus positioned he made five or six unsuccessful attempts to operate the coupler. While the record does not disclose definitely where the plaintiff should have been positioned in order to operate the coupler, we think it is evident that he was not in a proper position while on the adjacent car. He testified that he placed himself on the car because it was hot and it became rather tiresome running fifteen or twenty feet every few minutes in order to pull pins. In a statement made previous to the trial and offered in evidence, he stated, "The pin lifter was about 3 and a half feet from where I hung on the ladder. This is further away than usual and I could not pull it because I did not have sufficient leverage stretched out as I was to pull out and up on the pin and hang on at the same time."

After having attempted unsuccessfully to operate the coupler from this awkward position, he stepped upon the ground and ran along beside the cars which were moving at a speed of from six to eight miles per hour. While thus running, he stated that he took three or four steps and during that time made three attempts (at a previous trial plaintiff stated two attempts) to lift the pin, that on the third the pin lifted, the coupler operated and the leading car was cut off and went on down the track as intended. At the time he succeeded in lifting the pin and uncoupling the car his foot went into a space between a switch rod and the switch ties at No. 35 switch stand. This space had a rod running down the middle between the two ties. It was the stepping in this space which resulted in the injuries complained of.

The plaintiff testified that the car at the time he boarded it was about fifty or sixty feet from No. 35 switch and that after he stepped on the ground he traveled three or four steps before reaching the switch. All of this happened while the train was traveling from six to eight miles per hour. It is thus obvious that only a few seconds at the most elapsed...