Katila v. Baltimore & OR Co.

• Decision Date: 28 June 1939
• Docket Number: No. 7825.,7825.
• Parties: KATILA v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

104 F.2d 842 (1939)

KATILA v. BALTIMORE & O. R. CO.

No. 7825.

Circuit Court of Appeals, Sixth Circuit.

June 28, 1939.

Marvin Harrison, of Cleveland, Ohio (Harrison & Marshman, of Cleveland, Ohio, on the brief), for appellant.

Sidney D. L. Jackson, Jr., and Dwight B. Buss, both of Cleveland, Ohio (Baker, Hostetler, Sidlo & Patterson, of Cleveland, Ohio, on the brief), for appellee.

Before SIMONS, HAMILTON, and ARANT, Circuit Judges.

SIMONS, Circuit Judge.

In an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. for damages due to injuries received while in the employ of the defendant, the appellant by verdict of the jury was awarded $8,000. He complains of its inadequacy, his main grievance being that the court, while permitting proved damages to be reduced in the ratio that his own negligence bore to total negligence, yet erroneously withheld from the jury a specification of substantial negligence notwithstanding a specific request that it be submitted. A new trial is therefore sought.

Katila, thirty-eight years old, was employed by the appellee as a car inspector, having been in its service for thirteen years. Upon the night of June 22, 1936, he was engaged in the Painesville yard of the appellee in checking air pressure of a string of freight cars which were to be moved out later in the night. While so employed the air supplied under pressure from a pipe leading from the shops failed. Katila and Miles, a fellow inspector, started looking for the source of the trouble. Knowing that the air line came through a box located in the yard, wherein was a gauge indicating air pressure on the line, they decided to examine it. The air box was sunk in the ground between the old lead track and track 1. It had a metal flanged cover estimated to weigh from fifty to a hundred and forty pounds. Miles took a position at the northwest corner of the box in close proximity to track 1. Katila at first was also on the northerly side of the box. With some difficulty they pried the cover loose. As its northerly edge was lifted they were able to look into the box, and by means of their lanterns determine that the gauge showed lack of air pressure on the line. There is evidence that Katila then stepped to the opposite side to help replace the cover, which had slipped somewhat to the east. It was while the men were in this position, Miles on one side of the box and near track 1, facing south, and Katila on the other facing north, that the accident happened, by reason of a string of cars being moved north along track 1.

The negligence of the railroad consisted in failure to have a brakeman riding the lead or front end of the train, and failure to have a light on this end, in conformity with rule and custom. The manner of the accident, according to the theory of the appellant, and within the evidence, is that as each man had hold of the box cover with his left hand, the cover being inclined toward the north, and while Katila was kicking the lower end of it to secure its alignment with the box and so off balance, the lead car struck Miles and knocked him backwards. As a result the lid was violently jerked in the same direction so that Katila was catapulted over the box, along the ground, and under the lead car of the train, which was moving at a speed of three to ten miles an hour. It was testified that the car did not strike the metal cover nor Katila, but struck Miles, and that when the latter's hold on the box cover was torn loose it was done so violently that the skin of his palm was torn. Katila's leg was badly mangled, necessitating its amputation midway between the knee and the hip, his shoulder was broken, and he sustained other injuries. A specification of negligence in addition to the failure of the railroad to have a man or light at the front of the lead car was that Miles was negligent in standing too close to the track and in failing to keep a lookout for the approach of cars, and that his negligence was attributable to the railway. So the grievance is that since the jury was permitted to reduce damages by the application of the rule of comparative negligence, all negligence attributable to the railway should have been submitted to the jury.

The court overruled the appellant's request with respect to the negligence of Miles, and in denying a motion for new trial expressed the view that the...