Wonnacott v. Denver & Rio Grande Western R. Co.

• Decision Date: 03 March 1951
• Docket Number: No. 4142.,4142.
• Citation: 187 F.2d 607
• Parties: WONNACOTT v. DENVER & RIO GRANDE WESTERN R. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

187 F.2d 607 (1951)

WONNACOTT v. DENVER & RIO GRANDE WESTERN R. CO.

No. 4142.

United States Court of Appeals Tenth Circuit.

March 3, 1951.

Dwight L. King, Salt Lake City, Utah (Calvin W. Rawlings, Harold E. Wallace, Parnell Black, Brigham E. Roberts, and Wayne L. Black, all of Salt Lake City, Utah, on the brief), for appellant.

Grant H. Bagley, Salt Lake City, Utah (W. Q. Van Cott, S. N. Cornwall, and Dennis McCarthy, all of Salt Lake City, Utah, on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

During part of the time hereinafter referred to, the Denver and Rio Grande Western Railroad system was operated by trustees appointed for that purpose and during part of the time it was operated by the railroad company, but the change in operation has no decisive bearing here; and in the interest of brevity, reference will be made to the company as though it operated the railroad throughout the entire period.

James Edward Wonnacott was an employee of the company at Salt Lake City, Utah, and he worked as a brakeman. While employed in that capacity, he was inducted into the Marine Corps and was discharged on May 2, 1946. On June 10 or 11, 1946, he made application to the company in Salt Lake City for restoration to his former position. On August 30, 1948, he was reemployed as a brakeman and he has continued to work since that date. Invoking the substantive and procedural provisions of section 8 of the Selective Training and Service Act, as amended, 50 U.S.C.A.Appendix, § 308, he instituted this action against the company to recover compensation for loss of wages between the time of making the application for restoration and the time of his re-employment. The company defended on the ground that Wonnacott was not in physical condition to perform the duties of the position. The jury returned a verdict for the defendant, judgment was entered accordingly, and plaintiff appealed.

The only contention urged for reversal of the judgment is that the court erred in its instruction to the jury in respect to the effect of a request for leave of absence. But it is unnecessary to explore the question. For the reason presently outlined, we think that the court should have directed a verdict for the defendant. And it is well settled that an appellant may not be heard to complain of prejudicial errors in the instructions where his adversary was entitled to a directed verdict. That rule is merely the application of a recognized segment of the familiar doctrine that errors which could not have prejudiced the unsuccessful party give no right to a reversal of the judgment. Hamilton Iron & Steel Co. v. Groveland Mining Co., 6 Cir., 233 F. 388; Weidenfeld v. Pacific Improvement Co., 2 Cir., 43 F.2d 817; Nalbantian v. United States, 7 Cir., 54 F.2d 63; General Securities Corp. v. City of Homewood, 5 Cir., 67 F.2d 513; Jones v. Mutual Life Insurance Co. of New York, 8 Cir., 113 F.2d 873.

A casual reading of the statute, supra, makes it plain that plaintiff did not have the right to be restored to the position of brakeman unless he was still qualified to perform the duties of such position. At the conclusion of all the evidence, the defendant moved for a directed verdict in its favor on the ground that at the time of making the application for restoration plaintiff was given a physical examination and was found to be not physically qualified to perform the duties of a railroad brakeman; that he was given another examination in November, 1946, and again was found to be not physically qualified to discharge the duties of the position; and that he did not again seek employment until August, 1948, at which time he was employed as a brakeman and had continued in such employment since that time. The court reserved decision on the motion and submitted the case to the jury. Plaintiff suffered a sprained ankle while a member of the Marine Corps but he was not in military combat. He was given a physical examination at the time of discharge from the service and the report stated that he had a tachycardia condition which means abnormal rapidity of the heart action. After submitting his application for restoration, plaintiff reported to an examining physician of the defendant in Salt Lake City for a physical examination to determine his fitness to perform the duties of brakeman. He had blood pressure of 170 systolic and 80 diastolic. While the physician failed to find anything wrong with his ankle or his heart, plaintiff stated in giving his history that he sustained a fracture of the ankle while in the Marine Corps, that the ankle still pained him, and that he was discharged from military service because of heart trouble. In view of the history given, and in view of the strenuous work required of a railroad brakeman, it was the conclusion of the physician that it was unsafe...