Louisville & NR Co. v. Botts

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: SANBORN, WOODROUGH and JOHNSEN, Circuit
• Citation: Louisville & NR Co. v. Botts, 173 F.2d 164 (8th Cir. 1949)
• Decision Date: 14 March 1949
• Docket Number: No. 13750.,13750.
• Parties: LOUISVILLE & N. R. CO. v. BOTTS.

173 F.2d 164 (1949)

LOUISVILLE & N. R. CO. v. BOTTS.

No. 13750.

United States Court of Appeals Eighth Circuit.

March 14, 1949.

Wilton D. Chapman, of St. Louis, Mo., for appellant.

Roberts P. Elam, of St. Louis, Mo., for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

A switchman, employed by the Louisville and Nashville Railroad Company, in its Radnor Yards, outside Nashville, Tennessee, lost a leg, when he slipped off a footboard on the front of a moving switch engine, as he was attempting to mount it, and fell onto the track. He brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages, charging a violation of the Boiler Inspection Act, 45 U.S.C.A. § 22 et seq. A jury found that the accident was due to a violation of the Boiler Inspection Act and returned a verdict for the employee. The Company has appealed.

Section 2 of the Boiler Inspection Act, 45 U.S.C.A. § 23, provides: "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions * * * of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for" (which the Interstate Commerce Commission is authorized to establish or approve).

The principal contention urged for reversal is that the evidence required the trial court to hold as a matter of law that there was no violation of the Boiler Inspection Act, and that it therefore was error to deny appellant's motion for a directed verdict.

The evidence showed that the footboard involved was fastened to some brackets, extending from the pilot beam of the locomotive, with oval-headed bolts, which were not countersunk in the wooden tread and whose top-points projected three-eighths of an inch above the surface. The heads were about the size of a twenty-five cent piece. The bolts were placed in the footboard when the switch engine had last been in the shops for repairs, but just how long this was before the accident occurred does not appear. The testimony described the heads as being "bright" and "shiny." The front bolts were located about 2½ inches from the edge of the footboard.

The switchmen did not have any specific engine in their work but used whichever one was assigned to their shift, when they came on duty each day. The last time appellee's crew had drawn this particular switch engine was a month or so before the accident.

The accident occurred about 11 p. m. The yard conditions at the point were dark. The engine had just completed the switching of a string of cars and was ready to move onto another track. It had backed some distance up the track, to enable appellee to set the necessary switch. After he had done this, appellee signaled the engineer to come ahead. As the engine approached, appellee gave a "steady" or slowing signal, so he might mount the footboard. The engine thereafter proceeded at a speed of 3 or 4 miles an hour. As it came to where he was standing, appellee with the use of his lantern was able to see the outline of the footboard but not its details. He lifted one foot onto the footboard, together with his weight, and as he did so the sole of his shoe came in contact with a smooth stationary object that felt about an inch in diameter. The object caused his shoe sole to slide or roll over its top in such a way as to make him lose his balance and topple him onto the track.

We cannot say, as a matter of law, that this footboard, as part of a locomotive used for night-switching in a dark yard, with its three-eighths-inch projections of bolt heads, on which a switchman might be caused to step in lifting his foot and weight, under permitted practice, onto the moving engine, was "in proper condition and safe to operate in the service to which * * * put, without unnecessary peril to to life or limb," if it was capable generally of producing accidents such as the one that occurred. Whether its condition was of that character was a question upon which we think reasonable men could differ in their judgment on the facts shown. And where "fair-minded men may honestly draw different conclusions from the evidence, the question is not one of law, but of fact to be settled by the jury." Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 489, 78 L.Ed. 882. Cf. also Myers v. Reading Co., 331 U.S. 477, 484, 485, 67 S.Ct. 1334, 1338, 1339, 91 L.Ed. 1615, which recognized the right of a jury to determine, from the manner and results of the operation of a freight-car brake, whether it was an "efficient" hand brake within the requirement of section 2 of the Act of April 14, 1910, 45 U.S.C.A. § 11, of the Safety Appliance Acts.

In this connection, heed necessarily must be given to the unmistakable teaching of the Supreme Court in its recent decisions, that trial and appellate courts, both federal and state, on questions of liability under the Federal Employers' Liability Act, have been taking too narrow a view generally of the scope of permissive inference which is open to a jury on "probative facts." As one of the Justices has expressed it, in indicating the purpose of that Court's repeated overturning of decisions in such cases during the past few years (approximately 20 since 1943), "The historic role of the jury in performing that function * * * is being restored in this important class of cases." See concurring opinion of Mr. Justice Douglas in Wilkerson v. McCarthy, 69 S.Ct. 413, 422.

The opinions of the Supreme Court have declared that it is "the clear Congressional intent that, to the maximum extent proper, questions in actions arising under the Act should be left to the jury," Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 451, footnote 30, 87 L.Ed. 610, 143 A.L.R. 967; that such cases may not be taken from the jury merely because the question of liability is "close or doubtful," Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444; that the jury has the right to make "all reasonably possible inferences" from such probative facts in the evidence as it chooses to accept, and "It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences," Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 32-35, 64 S.Ct. 409, 411, 412, 88 L.Ed. 520; that in any choice between possible inference "a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference," but "Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear," Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916; and that the assumption that, on an issue of liability, "juries will invariably decide * * * against railroads" is "contrary to fact," and courts may not act on the theory that "juries will fall short of a fair performance of their constitutional function," but they must assume that a jury "finds facts only because they are proved," Wilkerson v. McCarthy, 69 S.Ct. 413, 417, 418.

On these decisions and the facts which were involved in them, we think the trial court clearly was entitled to allow the jury to decide whether the footboard, in the use to which the switch engine was put, was in proper condition and safe to operate without unnecessary peril to life or limb, and, if it was found not to be in such condition, whether the violation of the Boiler Inspection Act, which thereby would exist, was a proximate factor in causing appellee's injury.

But appellant argues that there can be no violation of the Boiler Inspection Act, unless some regulation or order of the Interstate Commerce Commission made under the Act has been violated. As to switch engine footboards, it appears that the Commission has established regulations governing the number, dimensions and location thereof, and the size and number of their hanger brackets, but, other than to provide that the tread of the footboard shall be "securely bolted" to the hangers, it has made no prescription on the kind of bolts to be used in the tread or the manner of their application. See 49 Code of Fed. Regulations § 131.16(a) (4).

The language of the Act affords no basis for the argument which appellant makes. It is to be noted that section 2, 45 U.S.C.A. § 23, provides that a carrier may not use a locomotive, "unless" it and all its parts are in proper condition and safe to operate, without unnecessary peril to life or limb, in the service to which the locomotive is put, "and unless" it has been subjected to the inspections provided for in the Act, "and" it meets such tests "as may be prescribed" in the rules or regulations of the Interstate Commerce Commission. (Italics ours.) The effect of this is to impose three conditions on a carrier's right to use a locomotive: (1) All parts of the locomotive must be safe to operate, without unnecessary peril to life or limb, in the service to which the locomotive is put; (2) the locomotive must have been submitted to the inspections provided for in the Act; and (3) the locomotive and its parts must meet such tests and conform to such standards as the Interstate Commerce Commission may have prescribed or approved.

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