Chicago & North Western Railway Company v. Rieger

• Decision Date: 27 February 1964
• Docket Number: No. 17292.,17292.
• Citation: 326 F.2d 329
• Parties: CHICAGO & NORTH WESTERN RAILWAY COMPANY, Appellant, v. Arthur J. RIEGER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 329 (1964)

CHICAGO & NORTH WESTERN RAILWAY COMPANY, Appellant, v. Arthur J. RIEGER, Appellee.

No. 17292.

United States Court of Appeals Eighth Circuit.

January 17, 1964.

Rehearing Denied February 27, 1964.

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Philip Stringer, St. Paul, Minn., made argument for appellant and filed brief with Arthur J. Donnelly, R. Paul Sharood and Edward C. Stringer, St. Paul, Minn.

R. T. Rodenberg, New Ulm, Minn., made argument for appellee and filed brief with Robert J. Berens, New Ulm, Minn.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HANSON, District Judge.

HANSON, District Judge.

This action was brought under the Federal Employers' Liability Act to recover for injuries received by the appellee, a railroad employee, near Revillo, South Dakota. The action is predicated on the negligence of the appellant railway company.

The accident occurred when a large wooden beam was being loaded on to some track cars. Appellee was a part of the crew performing this operation. The track was a single one running east and west. The loading was being done at a curve where the south rail was higher than the north rail. There were beams on both sides of the tracks but the one involved was a 9" × 18" one, 28 feet long, located on the north side of the track. The accident happened while the first beam was being loaded. There was ice and snow on the ground. It had been snowing and sleeting the night prior to the accident. The place of the accident had been shovelled.

The equipment which was to be used to move the beams was a "crab" or small crane on wheels and two push cars. The first beam was loaded on to the push cars, but because it, as loaded, was resting partly on the crab, the employees tried to use the crab to slide the beam and get it off of the crab. The end of the beam resting on the crab was raised by the crane. The idea was that this would cause the beam to slide forward away from the crab. Instead, the beam slid forward about 12 inches and then swung sideways and hit the appellee.

The case was submitted to the jury. The jury found for the appellee and the railroad appealed to this court.

The railroad raised and argued four points:

1. Some evidence of negligence is still a requisite in cases under Federal Employers\' Liability Act.

2. There is no evidence of negligence on the part of the defendant.

3. The court erred in (a) failing to define the issues and (b) refusing defendant\'s requested instructions that would have done so.

4. The court erred in deferring to counsel on the nature of the issues submitted.

With respect to whether or not some evidence of negligence is a requisite in cases under the Federal Employers' Liability Act will not be discussed because the appellee admits, and correctly so, that some evidence of negligence is a requisite in cases under the Federal Employers' Liability Act.

The second issue is whether or not there was evidence of negligence on the part of the railroad sufficient to submit the case to the jury. The trial court submitted specifications of negligence as to whether the railroad failed to use reasonable care to provide the appellee with a reasonably safe place to work and whether there was an insufficiency, due to the negligence of the railroad, in its cars, appliances, machinery, road beds, or other equipment.

There was ample evidence to sustain both of these grounds of negligence. There would appear to be more evidence of insufficient equipment than any other type of negligence, but the jury would also be permitted to find that under the circumstances of the case, permitting the loading of the beams at a point where there was a curve and the tracks were not level constituted negligence.

There was also evidence of weather conditions which would bear on the issues of negligence submitted to the jury. Requested instruction No. 5 read as follows:

"5. You are instructed as a matter of law that there is no evidence in this case from which you could find that the defendant Railway Company was negligent in failing to provide a safe place to work because of the snow and ice conditions existing at the time and place where plaintiff sustained his injury, or because of the condition of the ground where plaintiff was working, or the condition of the stringers which the plaintiff was engaged in moving."

In Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905, Holmes J. held that the slippery condition caused by the ice, if known, had a bearing on the duty of the railroad company to its employee if there was a reasonable way for the railroad to decrease the danger caused by the weather conditions. McGivern v. Northern Pac. Ry. Co., 132 F.2d 213 (8th Cir.) is consistent with that view. In the McGivern case, there was nothing shown by which the railroad could have lessened the danger resulting from the snow. The court there said that the danger did not in itself imply negligence. In that case, sand, ashes, and salt were available to improve the conditions. In Raudenbush v. Baltimore & Ohio R. R., D.C., 63 F. Supp. 329, the rule was correctly given. The railway has the duty to furnish sufficient instruments, sand, gravel, salt, etc. to decrease the danger from the ice and snow if this can reasonably be done. To the same effect are Fugazzi v. Southern Pac. Co., 9 Cir., 208 F.2d 205, and Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411.

The McGivern case does not hold, as stated in the Raudenbush case, that a railroad is not liable to its employees for injuries resulting from climatic conditions. That case does hold that there must be some showing of negligence on the part of the railroad in not lessening the danger caused by the climatic conditions before negligence can be imputed to the railroad on this ground.

Probably the McGivern case was not impliedly overruled by the Lilly case as they involve different factual situations. However, in the Lilly case, the court said there is an absolute and continuing duty to maintain the locomotive and all parts and appurtenances thereof in proper condition and safe to operate without unnecessary peril to life or limb. The court was talking about ice. In this connection see Collins v. Southern Pacific Company, 286 F.2d 813, 90 A.L.R.2d 592 (9th Cir.).

In the present case, it is only necessary to say that the court was correct in leaving to the jury the question of whether the weather conditions were a factor on this issue of the alleged negligence of the railroad, and correct in refusing requested instruction No. 5.

The defendant in the last sentence of requested instruction No. 7 asked the court to charge the jury that a temporary dangerous working condition resulting from the weather is not by itself a negligent failure on the part of the carrier to provide the employee a safe place to work. A number of courts have made this statement. McGivern v. Northern Pac. Ry. Co., supra; Missouri Pacific Railroad Company v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Detroit T. & I. R. Co. v. Banning, 6 Cir., 173 F.2d 752.

The defendant's request was not correct for several reasons. One, the temporary character of the condition is not a factor which in and of itself has any significance. Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 87 L.Ed. 1444; Anderson v. Elgin, Joliet & Eastern Railway Co., 7 Cir., 227 F.2d 91. The duty to use reasonable care is a continuing one not relieved by fleeting circumstances. Missouri Pacific Railroad Company v. Aeby was criticized in Tiller v. Atlantic Coast Line R. Co., 4 Cir., 128 F.2d 420. Insofar as McGivern v. Northern Pac. Ry. Co., supra, and Detroit T. & I. R. Co. v. Banning, supra, relied on the criticized portion of the Aeby case, they are open to the same criticism. This is the second reason why this request was improper. It might have misled the jury to believe that the appellee assumed some risk of a temporary condition which would not be assumed in a permanent condition. Of course, the temporary nature of the condition might bear on whether or not the railroad could reasonably do anything to improve the condition.

The third reason that the proposed instruction was not correct is that the word "temporary" is a relative and comparative term, Worthington v. McDonald, 246 Iowa 466, 68 N.W.2d 89, 47 A.L.R. 2d 135, and under the present record it would have to be defined if used in an instruction. Of course, this does not completely answer the question as to whether the refusal of this request was improper, because even if a requested instruction is not entirely perfect, it may in some situations impose upon the court the duty to give a more specific instruction on a particular issue where it soundly appears that such an instruction is needful to enable the jury to intelligently determine the question. Chicago & N. W. Ry. Co. v. Green, 8 Cir., 164 F.2d 55; Chicago, Rock Island & Pacific Railroad Co. v. Lint, 8 Cir., 217 F.2d 279. This requested instruction, however, was not of the type contemplated by the rule. This was a negative instruction to tell the jury that an issue was not in the case rather than to tell the jury that an issue was in the case. Consolidated Electric Coop. v. Panhandle E. Pipeline Co., 8 Cir., 189 F.2d 777. It would include some comment on the evidence and this is addressed to the court's discretion. Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R.2d 1064. It might have tended to influence the jury to accept evidence of the defendant as against that of the plaintiff. Jack v. Craighead Rice Milling Co., 8 Cir., 167 F.2d 96. For these reasons, it must be held that the court did not abuse its discretion in refusing the last sentence of requested instruction No. 7.

The defendant cites Texas & Pacific Ry. Co. v. Behymer, supra, for the principle that the customary procedure is presumptively proper. What the court said in that case is...