Spotts v. Baltimore & OR Co.

• Citation: 102 F.2d 160
• Decision Date: 27 March 1939
• Docket Number: No. 6635.,6635.
• Parties: SPOTTS v. BALTIMORE & O. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

102 F.2d 160 (1938)

SPOTTS v. BALTIMORE & O. R. CO.^*

No. 6635.

Circuit Court of Appeals, Seventh Circuit.

December 20, 1938.

Rehearing Denied March 27, 1939.

Charles D. Clark, Henry D. Sheean, and E. W. Lademann, all of Chicago, Ill., and Howard W. Mountz and George E. Mountz, both of Garrett, Ind., for appellant.

Edward B. Henslee, of Fort Wayne, Ind., and Tom Davis and Ernest A. Michel, both of Minneapolis, Minn., for appellee.

Before SPARKS and TREANOR, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Defendant appeals from a judgment rendered against it in an action brought by plaintiff to recover for personal injuries and assigns error upon the action of the court in refusing its motion for a directed verdict. It insists also that the verdict is excessive; that the court erred in its instructions to the jury and that there is no substantial evidence to support a verdict.

The complaint charged that plaintiff was employed by defendant, an interstate carrier, as a brakeman; that at the time of the accident, defendant negligently failed to equip properly a certain car with an efficient brake wheel and brake staff, contrary to the provisions of the Safety Appliance Act, negligently provided a brake staff and wheel which fell to one side, when plaintiff attempted to operate same, and permitted the brake to be and remain in a defective and unsafe condition contrary to the provisions of the Safety Appliance Act.

The evidence of plaintiff was to the effect that at the time of the accident, it became his duty to tighten the brake on one of defendant's freight cars, an open gondola, the end-gates of which drop inwardly when it is desired to load material which extends beyond the length of the car if the end-gates are closed. To accommodate such loading the brake on the car is hinged at the lower end so that it may swing downwardly and outwardly to one side to a horizontal position. It can be operated in either position. Just before the accident, the brake was upright, engaged in a metal slot and held in place by a latch. This latch closes the slot in which the upright staff is held and when the operator raises the latch and swings the brake staff downwardly to horizontal position it rests in another slot provided for that position.

Plaintiff testified that when he mounted the car, the staff was upright; that he took hold of the wheel, turned it with his right hand to tighten it and then put in it his brake club with his left hand and started to tighten the brake still further and that, while he was doing this, the staff suddenly fell over to the horizontal position and caused him to fall with it. He testified that he found the brake in its usual and ordinary upright position; that he took up the slack with his right hand a couple of rounds, — enough to get the brake tight. He had been a brakeman for some twenty-eight years and said that he did his work in the usual and customary manner; that when so operated, such brakes in the ordinary course of events do not fall, but that this one fell; that his instructions were to push on the brake club and this he was doing at the time of the accident, in the ordinary and customary manner. Another witness testified that he saw plaintiff get on the car, apply the brake club and fall.

Defendant proved that the car and brake were of a type first used by American railroads during the World War, while the Railroad Administration was operating them. At the close of that Administration, 500 of a total of 4500 cars of this character were delivered to defendant and it itself added 6000 more cars of this type. The car was inspected in the yards the morning following the accident between 7 and 8 o'clock. The inspectors then tested it with the brake staff in both the upright and horizontal positions and found no defects in the mechanism. No repairs were made and the car and brake continued in service.

The federal statute provides that all cars must be equipped with "efficient" hand brakes. U.S.C., Title 45, Section 11, 45 U.S.C.A. § 11. The purpose of the act, as defined by the courts, is to increase the protection of operating train men to an extent beyond that furnished by the common law. The Congress, not satisfied with the common law duty of the carrier and resulting liability, has prescribed and defined the duty by statute. The purpose was to supplant the qualified duty of the common law with an absolute duty, deemed more just. Accordingly, if a railroad uses cars which do not comply with the standard, it violates the law, with consequent liability to make compensation to those injured as a result of its omission. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061. The statutory obligation is absolute and mandatory upon all carriers. Lehigh Valley R. Co. v. Howell, 2 Cir., 6 F.2d 784. Thus, in Baltimore & Ohio Ry. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419, the court said page 170:

"The requirement of the statute is substituted for the common-law rule which holds the employer to ordinary care to provide his employees a reasonably safe place in which, and reasonably safe appliances and machinery with which, to work. It is as definite and certain as is the common-law rule, and to hold that the duty imposed cannot be ascertained would be as unreasonable as it would be to declare that the common-law rule, which is ordinarily applied in personal injury actions brought by employees against employers is too indefinite to be enforced or complied with."

Consequently the question in the present case was whether an efficient hand brake within the meaning of those words as used by the act was provided upon the car in question. From the evidence of plaintiff, it is apparent that the accident happened because in some manner the staff was released from its fastening and fell to one side thus throwing plaintiff to the ground and injuring him. Though there is no testimony as to how the staff became loosened, the jury had a right to find from plaintiff's evidence that it was released and fell because it was not efficient. Proof of an actual break or visible defect in a coupling appliance is not a prerequisite to a finding that the statute...