New York, C. & St. LR Co. v. Affolder

• Citation: 174 F.2d 486
• Decision Date: 09 June 1949
• Docket Number: No. 13858.,13858.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: NEW YORK, C. & ST. L. R. CO. v. AFFOLDER.

174 F.2d 486 (1949)

NEW YORK, C. & ST. L. R. CO. v. AFFOLDER.

No. 13858.

United States Court of Appeals Eighth Circuit.

May 10, 1949.

Rehearing Denied June 9, 1949.

Lon O. Hocker, Jr., of St. Louis, Mo. (Jones, Hocker, Gladney & Grand, of St. Louis, Mo., on the brief), for appellant.

William H. Allen, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, RIDDICK, and COLLET, Circuit Judges.

COLLET, Circuit Judge.

The plaintiff recovered judgment for $95,000.00 for personal injuries for an alleged violation of the provision of the Safety Appliance Act that:

"It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." 45 U.S.C.A. § 2.

Upon motion for new trial a remittitur of $15,000.00 was ordered and made. From the judgment, defendant appeals. Three grounds for reversal are asserted: First, that there was error in the instructions; second, that if the Safety Appliance Act was violated, such violation was not the proximate cause of plaintiff's injury; and third, that the verdict was excessive.

Plaintiff lived at Fort Wayne, Indiana, and was employed by defendant in interstate commerce as a switchman in defendant's yards at Fort Wayne at the time of his injury on September 24, 1947. He was one of a crew of five men comprising a switch engine crew engaged in the classification of cars in the defendant's yards at Fort Wayne. The switch tracks involved herein were substantially parallel and ran east and west, sloping toward the east. In classifying, or sorting, the cars in the yard six or seven cars were run onto the east-bound main switch from the west and stopped approximately fifteen car lengths west of the east end of that switch track. Plaintiff, the "field man" of the crew, had the duty of setting the brakes on cars spotted and attending to duties away from the engine. The other switchman stayed with the engine and such cars as might be attached thereto. Plaintiff set the brake on one of these six or seven cars in order that they would remain in place as others were added. The process of sorting or classifying the cars in the yard proceeded until 25 cars had been accumulated on this particular track. The west car of this group of 25 was a Rock Island car. When the Rock Island car was put on this track, it was "kicked in" — an operation consisting of the engine giving it a "bump" from the west, starting it rolling east on the east-bound main switch, then cutting it loose from the engine and allowing it to roll on down to the other cars and automatically couple to them by impact. When the Rock Island car was cut loose from the engine the coupler at its west end was opened by the other or "head" switchman in order that the next car that was added would automatically couple to it. The next car to be added was a Pennsylvania hopper car. When it was "kicked in," the coupler on its east end was opened by the "head" switchman. If the couplers were operating properly and either the one on the west end of the Rock Island car or the one on the east end of the Pennsylvania car was open the cars would automatically couple and become locked together, hence the opening of the coupling on the east end of the Pennsylvania car at that time was a precaution against the possibility that the Rock Island car's west coupler had become closed by its impact with the other 24 at the time it was "kicked" in against them. When the coupler on the Pennsylvania car was opened the head switchman testified that the lever "bound," or stuck, requiring two or three efforts on his part to open it. Later the lever bracket was found to be bent. There was testimony pro and con as to whether that would interfere with the automatic working of the coupler. The head switchman was positive in his testimony that although he had some difficulty in doing so, he put the coupler on the east end of the Pennsylvania car in proper position to operate on impact. The Pennsylvania car was "kicked" down to the Rock Island car, but unknown to the crew at that time, it did not couple. Three other cars were added to the group on this track in either two or three separate operations. When the last, or twenty-ninth, car was added, plaintiff was completing an operation of riding a car down on the fifth track south of the east-bound main track. This last operation incident to the 29 cars consisted of the engine shoving a car east against those already on the east-bound main, then shoving the entire group east along the track to make room for the twenty-ninth car. But when the engine had shoved the entire group a sufficient distance east and stopped, a separation occurred between the Rock Island car and the Pennsylvania car and all of the 25 cars east of the Pennsylvania car left those coupled to the engine and continued to roll down the track to the east. When they had gone approximately two car lengths plaintiff saw they were loose and, having been frequently instructed to stop cars under such circumstances, ran north across the intervening tracks toward the loose cars for the purpose of setting a brake on one of them to stop them. When he got almost to the east end of the west, or Rock Island, car, and approximately two or three feet from it, he stepped on something that rolled under his foot and caused him to fall forward under the car. The wheels of the car ran over his right leg and so mangled it that it was necessary to amputate it, leaving a stump only four inches in length.

The parties are in agreement that the failure of the Pennsylvania and Rock Island cars to couple on impact was sufficient evidence from which the jury could, if it saw fit, properly infer that defendant had violated the Safety Appliance Act in not equipping its cars with "couplers coupling automatically." That is the law. Chicago, R. I. & P. R. Co. v. Brown, 229 U.S. 317, 33 S.Ct. 840, 57 L.Ed. 1204; Southern R. Co. v. Stewart, 8 Cir., 119 F.2d 85; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995. The trial court so understood it. And there was no dispute concerning the fact that these cars did not couple automatically. Defendant contended at the trial that this was not because they were not properly equipped with automatic couplers but was more likely caused by the closing of the coupler on the Rock Island car on its impact when it was kicked in, a contingency which the testimony indicated was not unusual, and the failure of the head switchman to open the coupler on the Pennsylvania car when it was sent down against the Rock Island. If both couplers were closed, there could have been no automatic coupling of the cars on impact even if the couplers were in proper condition.

The error assigned to the trial court's instruction is that by the charge on this point the court unintentionally misled the jury by instructing in effect that the separation of the cars was not only prima facie evidence of a violation from which the jury could infer a failure to properly equip the cars with automatic couplers in proper condition, but actually amounted to an instruction that all that it was necessary for the jury to find in order to entitle plaintiff to a verdict (if the failure to couple was the proximate cause of injury) was that the cars did not couple — a conceded fact. Thus, the defendant contends, it was deprived of its defense that the cars were properly equipped with proper automatic couplers and that the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened. The question is therefore not one of law but of construction of the court's instructions on this subject.

At the conclusion of the charge, defendant specifically raised the question it now pursues. The applicable portions of the charge are as follows:

"Now, bear in mind that these instructions are given to you as a whole. Don't attempt to separate them and use part of them in determining the issues and disregarding the remainder, because in that way your verdict would not be applicable. They are given to you for use and application to the case and to guide you in your deliberations as a whole, and I hope as a whole that they will be intelligible to you.

* * * * * *

"This case is based upon a charge by the plaintiff that the defendant failed to comply with the federal law, or a federal statute, known as the Federal Safety Appliance Act, and, briefly, this law prohibits all railroads operating in interstate commerce to use any car in interstate commerce that is not equipped with couplers which couple automatically on impact.

"It is the position of the plaintiff in this case, as I understand the record, that on the occasion in question, the 24th day of September, of last year, he was a brakeman in the defendant's yard; that on this main east and west track there was a separation of the cars on that track. The numbers of the two cars where the separation occurred were given to you, but I prefer to use the names of the cars, because I think that is much easier for you to remember. One of the cars was referred to as a Pennsylvania car, and another car was referred to as a Rock Island car; and between these two cars the coupling, for some reason, and that is for you to determine, was not connected, and they separated, and the string of cars to the east of the break, some twenty-five cars started a movement to the east, and the plaintiff, who was some four or five tracks to the south of the track upon which this movement was located, some 3:00 o'clock in the morning, the searchlights in the yards, some evidence about the obscuring of vision by beam or smoke from cranes, but he saw the movement of these cars start...