Anthony v. Louisiana & Arkansas Railway Company

• Decision Date: 30 April 1963
• Docket Number: No. 17020.,17020.
• Citation: 316 F.2d 858
• Parties: Nina N. ANTHONY and Graydon Anthony, Partners, d/b/a Graydon Anthony Lumber Company, Appellants, v. LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.2d 858 (1963)

Nina N. ANTHONY and Graydon Anthony, Partners, d/b/a Graydon Anthony Lumber Company, Appellants, v. LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellee.

No. 17020.

United States Court of Appeals Eighth Circuit.

April 30, 1963.

Boyd Tackett, Shaver, Tackett & Jones, Texarkana, Ark., for appellant.

LeRoy Autrey, Texarkana, Ark., was with him on the brief.

Bradley D. Jesson, Hardin, Barton & Hardin, Fort Smith, Ark., for appellee and P. H. Hardin, of Hardin, Barton & Hardin, Fort Smith, Ark., was with him on the brief.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

PER CURIAM.

This action was brought by the Railroad to recover from the Lumber Company partners amounts paid an injured railroad brakeman, Herman Cloudy, under the Federal Employers' Liability Act. The case was tried to the court without a jury. The court found for plaintiff in an opinion reported as Louisiana & Arkansas Ry. v. Anthony, D.C. W.D.Ark., 199 F.Supp. 286.

The questions presented on this appeal are:

1. Were appellants guilty of negligence proximately causing Cloudy's injuries?

2. Was appellee free from negligence and if not, does appellee's negligence prevent a recovery?

3. Does the agreement of the parties called the "Industry Spur Track Agreement" require appellants to fully indemnify the railroad for the amounts expended because of Cloudy's injuries?

4. Did the trial court err in finding appellee guilty of passive negligence only and in finding appellants guilty of active negligence?

The railroad has served the Anthony Lumber Company near Hope, Arkansas, since 1941. At that time an agreement known as an "Industry" or "Spur Track Agreement" was entered into between the Railroad and the Lumber Company and a 671-foot spur track was laid by the Railroad. In 1944 a 66-foot extension was laid pursuant to a supplemental agreement, which so far as material here is like the 1941 agreement. A truck loading shed was constructed just west of the planing mill and south of the spur track at this time. In 1956 the railroad moved the spur track about eight inches to the north and away from the loading shed because some of appellee's boxcars had been striking the shed. In 1957 another "Industry Track Agreement" was entered into extending the track westward 185 feet.

On May 15, 1959 when the Railroad was moving out one or two boxcars of woodchips, at a location a car length or so west of the loading shed, brakeman Cloudy fell from a car and received severe fractures and injuries which resulted in the amputation of his right leg above the knee joint. His claim against the Railroad under the Federal Employers' Liability Act was settled for $35,700.00 and payment of his hospital and medical bill of $2,018.50. This suit was brought to recover these amounts and for $1,500.00 attorneys fees and expenses. Judgment was for plaintiff.

The factual dispute at the trial centered around the cause of Cloudy's fall from the boxcar. In turn this dispute revolves in part around two conflicting statements given by Cloudy as to whether or not his head struck a portion of the loading shed. Cloudy did not appear as a witness. By agreement his statements were received as evidence.

The case was tried to the court without a jury. The court found for the railroad.

The errors assigned, briefly stated, are that notwithstanding the court's findings of fact and conclusions of law:

1. There is no substantial evidence that Cloudy struck any portion of the loading shed.

2. The proximate cause of Cloudy's injuries was not any negligent act or omission of the Lumber Company.

Discussed as a part of this assignment is the contention that appellee Railroad's negligence was the proximate cause.

3. The "Spur Track Agreement" does not on the facts of this case require full indemnification.

As a background for the factual discussion we need only to review briefly certain principles which have from time to time been stated by this court and which are well set forth in Geer-Melkus Construction Co. v. United States, 8 Cir., 302 F.2d 181, 183, as follows:

"Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. requires that findings of fact by the trial court `shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.\'

"Such rule is based upon sound legal principles and has been uniformly applied by the courts. We have repeatedly held that we will not attempt to substitute our judgment, based upon the cold record, for that of the trial court in determining credibility of witnesses and disputed fact issues. The responsibility for determining credibility and disputed fact issues is vested in the trial court. The trial court\'s fact findings can be set aside only upon clear demonstration that they were without substantial evidentiary support or induced by an erroneous view of the law. Fact findings supported by substantial evidence cannot be upset. Transport Mfg. & Equip. Co. v. Fruehauf Trailer Co., 8 Cir., 295 F.2d 223, 227; Nelson v. Seaboard Surety Co., 8 Cir., 269 F.2d 882, 886; Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136, 138.

"The trier of fact, whether court or jury, is the sole judge of the credibility of witnesses and the weight to be given their testimony. Upon appeal the evidence, including such inferences as may be reasonably drawn therefrom, is to be viewed in the light most favorable to the prevailing party. United States v. Stoppelmann, 8 Cir., 266 F.2d 13, 17; Pendergrass v. New York Life Ins. Co., supra."

The trial court in its findings stated in part:

"There is a factual dispute as to whether Cloudy was struck by an object at all, or whether the object, if one did strike him, was a part of one of the cars or a stationary object. There are two facts which convince the court that it was a stationary object, to-wit, the western corner of the roof line of the truck loading shed, immediately adjacent to the nearest rail of the spur track. which struck Herman Cloudy on his head, thus causing him to fall from the ladder between the cars into the path of the wheels of the last car. The first fact is that the only injury above his waist was a deep gash on the right side of his head. The second fact was that a chipped or splintered place was noted on the end rafter which supported the overhang or roof extension at the west corner of the truck loading shed."

It is this finding which appellants assigned as their first error. In addition to the evidence mentioned by the trial court, namely, the injury on the right side of his head and a chipped or splintered place on the end rafter supporting the roof overhang, we have conflicting statements of Cloudy. At first he said:

"A. * * * I got on the car, the last car, and got up on the inside, you know, between the cars to go up and let the brake off, and when I started out something struck me in the forehead up there.

* * * * * *

"Q. You don\'t know what hit you?

"A. I don\'t know what hit me.

"Q. Do you think the loading shed hit you?

"A. I don\'t see how it could. * * * I don\'t know what could have struck me.

* * * * * *

"Q. How about the place you had to work there? For the purpose for which you were working, such as coupling the cars together, doing the work of a brakeman. Would you say it\'s a safe place to work?

"A. Under the conditions — If you work on the other side, there\'s a big dump there that you were continually sliding down that dump. It was just about as safe on one side as the other. That is, if you get on the car and get out of the way of the shed.

* * * * * *

"Q. There was nothing in connection with that that had anything to do with the accident?

"A. No, sir. I don\'t know what hit me. After I got on the car I could remember something hitting me, but I don\'t know what."

He later said:

"With further reference to my accident of May 15, 1959, at Hope, Arkansas, I should like to state that I do not know just what hit me across the head, and knocked me from the car, but it was some part of the shed or building just adjacent to this spur track. It just had to be some part of that building and I believe it was the roof line just above the railroad cars, at the point where the accident took place."

"Regarding the accident I had on May 15, 1959 at Hope, Arkansas while I was employed by the L and A Railroad Co., I fell from one of the top of the box-cars when I was struck on the head by an object and fell to the ground under the train suffering injury. The train was going about 5 mph at the time I fell. I can\'t recall on which side to the train I fell. I was somewhere along the side of the shed at the time I was hit. I don\'t know exactly where since it happen so suddenly. The box-car I had just coupled was 20-30 feet beyond the end of the shed. I had just finished coupling the cars and I was climbing up the box car to walk on the top of one when I was struck. I had to climb on top since the shed was too close to the track to be on the side of the cars."

Appellants say that the evidence fails to establish without conjecture and speculation that any part of the shed hit Cloudy but rather it affirmatively shows that he was not struck by any part of the loading shed. This last statement follows, it is claimed, from the fact that his forehead was injured rather than the back of his head.

In McAfee v. Felts, 8 Cir., 295 F.2d 716, this court had before it two statements of an injured plaintiff, a pedestrian. In one she said she saw the automobile which struck her when it was about 40 feet away and approaching the intersection where she was struck. In the other statement she said she first saw the car when about one foot away. The court said the effect of the inconsistency was "for the jury to determine and their conclusion may not be disturbed here."

We regard Cloudy's testimony as conflicting. The trial court believed that he was hit by the...