Page v. St. Louis Southwestern Railway Company

• Decision Date: 30 January 1963
• Docket Number: No. 19756.,19756.
• Citation: 312 F.2d 84
• Parties: Emmett E. PAGE, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

312 F.2d 84 (1963)

Emmett E. PAGE, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.

No. 19756.

United States Court of Appeals Fifth Circuit.

January 3, 1963.

Rehearing Denied January 30, 1963.

Ray G. Thurmond, Tyler, Tex., Russell M. Baker, Baker, Jordan, Shaw & Foreman, Dallas, Tex., for appellant.

Jack W. Flock, Galloway Calhoun, Jr., Tyler, Tex., Clyde W. Fiddes, Roy P. Cosper, Calhoun & Calhoun, Ramey, Brelsford, Hull & Flock, Tyler, Tex., of counsel, for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This case, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., arises from injuries received by the plaintiff, Page, on October 7, 1958, when he fell from a ladder at defendant's freight warehouse in Dallas, Texas. The plaintiff and one Epperson were employed by defendant as carpenters. They were instructed to replace a broken cable on an overhead door at defendant's freight warehouse. The door was stuck in the track over which it moved and lacked about two-thirds of the bottom panel being all the way up in the track. Each of the carpenters procured a step ladder. Epperson got up on top of the door and removed one end of the cable while plaintiff removed the bottom bracket on the door. Epperson threw the broken cable to the floor, fixed the new cable to the drum and threaded it down through a channel to plaintiff who fastened it to a bracket on the bottom of the door. Epperson then took the slack out of the cable, and the evidence is in dispute as to whether he also placed any tension on the spring of the drum attached to the shaft. There was evidence that the door must be down before the tension can be adjusted properly and that, with the door mostly up, only the slack should have been taken out of the cable and no tension put on the spring. When Epperson came down off the door he did not tell plaintiff that he had placed any tension on the spring and there was no reason for plaintiff so to suspect.

Both plaintiff and Epperson then tried unsuccessfully to move the door. Looking for the cause, they found that two top brackets on the door were bent. The plaintiff and Epperson removed one of the brackets and the roller, after which that side of the top panel of the door dropped down or sagged six to eight inches. At this point Epperson left the scene for the purpose of procuring new brackets and rollers. Paintiff moved his ladder to take off the opposite bracket. He loosened the nuts and put a wrecking bar under the door on that side to hold it up while he removed the roller and bracket on that side. He had the bar in his left hand and was standing on the ladder when he removed the bracket and roller. The plaintiff testified:

"Q. And when you removed the bracket roller — the bracket and roller — what happened then?

"A. The door kick backwards. It kicked the bar out of my hand and knocked me and the ladder over.

"Q. Just describe — Tell the jury in your own way how that door kicked back. Was it hard or easy?

"A. Why, it just wammed back like a feller had hit you with a sledge hammer (indicating)."

Plaintiff further testified that he knew of nothing that would account for the door kicking back except tension on the spring.

In his amended complaint, plaintiff charged defendant with various acts of negligence; such as, failure to furnish plaintiff a reasonably safe place to work, reasonably safe tools and appliances with which to perform his work, failure to promulgate rules and regulations for the safe performance of the work, and negligence of his co-worker Epperson in adjusting and placing tension on the spring which activated the door, in failing to test the tension after tightening the spring, and in failing to warn plaintiff that he had placed or intended to place tension on the spring of the door.

Defendant answered, denying any negligence and charging plaintiff with various acts of contributory negligence and with adopting an unsafe method and procedure for repairing the door. Defendant pleaded also that the acts of negligence of the plaintiff were the sole proximate cause of his injuries, and in the alternative that plaintiff's injuries were the result of an unavoidable accident.

Defendant's theory was that the cause of plaintiff's injury was the panel falling down when the second bracket and roller were removed, and that it was not a safe procedure to remove the second bracket and roller before replacing the first set.

The case was tried to a jury on the 15th, 16th and 17th of January, 1962, which returned a general verdict for the defendant upon which judgment was entered.

Upon appeal the plaintiff seeks a reversal upon four claimed errors, one in the admission of evidence, and the other three in the court's instructions to the jury. Since the instructions go to any right of plaintiff to recover, while the evidentiary question goes to the amount of damages, we consider first the claimed errors in the court's instructions to the jury.

1. Proximate Cause.

In its charge to the jury, the district court defined proximate cause as follows:

"The term `proximate cause\' as used in this charge has a definite legal meaning which may differ from your understanding of the meaning of that term as used in ordinary parlance.

"As used in this charge the term `proximate cause\' means that cause which in a natural and continuous sequence produced the event or happening in question and without which such event or happening would not have occurred; and the act or omission in question only becomes a proximate cause of an event or happening when such event or happening is the natural and probably (sic) consequence of such act or omission and is such a consequence as ought to have been foreseen by a person in the exercise of ordinary care in the light of attending circumstances. It need not be the sole cause, but it must be a concurring cause which contributed to the production of the result in question and but for which such result or accident would not have occurred."

In a number of places in the charge which followed, the court instructed the jury that the burden was on the plaintiff to prove that the defendant was guilty of negligence in any one or more of the particulars alleged, and that such negligence was a proximate cause of the accident in question. The court overruled plaintiff's objection to the charge, stated as follows:

"The Plaintiff objects and excepts to the Court\'s charge and to those issues requiring the Plaintiff to show by a preponderance of the evidence that the negligent act of the Defendant was a proximate cause of his injuries; because under the Federal Employer\'s Liability Act the old concept of proximate cause has been done away with — and the only burden upon the Plaintiff is to show that the negligent act of the Defendant contributed to cause, in whole or in part, Plaintiff\'s injuries."

The plaintiff's objection to the charge is founded ultimately upon the language of the Act, which makes the defendant liable in damages "* * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C.A. § 51. (Emphasis supplied.)

The italicized words, "resulting in whole or in part from the negligence," would seem sufficient to place beyond cavil or debate the proposition that the Act does not provide workmen's compensation, but that liability is based upon negligence having a causal connection with the injury, and both the Supreme Court and this Circuit are committed to that proposition.¹

For many years the custom of the courts was to speak concerning the Act in terms of proximate causation.² The first significant departure from that custom came in a case where liability was based on a violation of the Federal Safety Appliance Act, not here involved. Coray v. Southern Pacific Co., 1949, 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208. The facts are succinctly stated in the opinion of the Supreme Court:

"* * * The decedent\'s death occurred when a one-man flat-top motor-driven track car crashed into the back end of an eighty-two-car freight train on a main-line track at a point near Lemay, Utah. Both train and motorcar were being operated in an eastward direction on railroad business. The train unexpectedly stopped just before the crash occurred because the air in its brake lines escaped, thereby locking the brakes. The air had escaped because of a violation of the Federal Safety Appliance Act in that the threads on a valve were so badly worn that a nut became disconnected. When the brakes locked, the motorcar was several hundred feet behind the freight train moving at about the same rate as the train, not an excessive rate under ordinary circumstances. The motorcar was equipped with brakes which had they been applied could have stopped the car within a distance of about one hundred feet. But the decedent who was in control of the car did not apply the brakes. Apparently he and another employee with him were looking backward toward a block signal and therefore did not know the train had stopped." 335 U.S. at 521, 69 S.Ct. at 276.

The state trial judge directed the jury to return a verdict for the defendant and the Utah Supreme Court affirmed. 112 Utah 166, 185 P.2d 963. The Supreme Court of the United States reversed, saying:

"The Utah Supreme Court reviewed the evidence here and held as a matter of law that the defective equipment did not proximately cause or contribute to the decedent\'s death. That court discussed distinctions between `proximate cause\' in the legal sense, deemed a sufficient cause to impose liability, and `cause\' in the `philosophic sense,\' deemed insufficient to impose liability. It considered the stopping of this train to have been a cause of

...