Chicago & NW Ry. Co. v. Green

Decision Date27 October 1947
Docket NumberNo. 13558.,13558.
CourtU.S. Court of Appeals — Eighth Circuit
PartiesCHICAGO & N. W. RY. CO. v. GREEN.

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Alfred E. Rietz, of St. Paul, Minn. (Lowell Hastings, of Chicago, Ill., on the brief), for appellant.

Sidney S. Feinberg, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.

Before SANBORN, THOMAS and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The appeal is from a judgment recovered by a brakeman against the Chicago and North Western Railway Company, on a jury trial, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained in a derailment.

The train involved was a passenger train of 16 cars running from Chicago to Omaha. The derailment occurred about 3½ miles west of Colo, Iowa. The last 6 cars of the train and the rear wheels of the preceding car all left the track. This resulted in the rails being torn up for some distance, as the train was being brought to a stop. When the track left standing was examined, it was found that one of the rails had broken or snapped off about 12 to 15 inches from the point where it was joined to the preceding rail.

According to the testimony of plaintiff, the rail "looked like it had been partly broken before", in that the break "sort of looked part new and part rusty." He testified also that some of the ties were torn out and broken by the derailment and that "these ties were rotten — they were spongy-like." "Where they had broken in two, you could see the inside was solid and the outer side was rotten and soft." He further testified that at Clinton, Iowa, a "slow order" had been given the crew, which directed them "to run slow for a mile and a half" on leaving Colo. The cross-examination of the engineer showed that the train was running between 50 and 60 miles per hour as it approached the place of the derailment and that it was somewhat late.

Plaintiff was the rear brakeman on the train and was sitting in the smoking compartment of the last car at the time of the accident. He claimed to have been thrown to the floor under a wash basin and to have struck his back on some pipes, with the result that a herniated intervertebral disc developed.

The complaint relied upon the doctrine of res ipsa loquitur. It also, however, contained a general allegation that "Defendant so negligently, recklessly and carelessly controlled, managed and operated said train that the same was caused to be derailed." On the trial, plaintiff further orally requested and was granted leave to amend the complaint "so that it may allege in substance that the defendant so negligently conducted its general business of railroading and was so negligent * * * that the train upon which the plaintiff was employed was caused to be wrecked." No formal amendment of the complaint itself was made.

To show the cause of the accident and the absence of any negligence on its part, defendant undertook to prove that the derailment was due to a transverse fissure, i. e., to an internal defect and deterioration in the head of the rail; that this fissure had spread over 30 per cent of the head and produced a weakness that made the rail break and snap off as the engine and the first cars of the train passed over it; that the fissure was not externally visible and so could not be detected in the patrol inspections which defendant daily made of its tracks and roadbed; that the only means known for detecting such an internal fissure was by the use of a special electrical-contact machine, known as the Sperry detector, which was not purchasable but was merely rentable from the manufacturer, and which defendant had thus rented and run over its tracks twice a year; and that such a test with the Sperry detector had last been made of the rails involved 4½ months before the accident, at which time all the rails in the track which the detector then showed to be fissured were removed and replaced.

To further establish that the rail was not previously broken, defendant also showed that the engine was equipped with an electrical signal box in front of the engineer, which would turn red at a distance of 11,000 feet from a broken rail or other traffic obstruction, such as a train ahead, that disrupted the electrical circuit in the track; that the signal box was part of an automatic train control system and whenever it thus was caused to turn red, unless the engineer immediately pushed an acknowledging lever and assumed control of the brakes, the brakes would set mechanically and the speed of the train would be reduced to 17 miles per hour; that on the occasion in question, according to the engineer's testimony, the signal box did not turn red until "just about the place where it the rail went out"; and that the engineer thereupon immediately applied the brakes and sought to bring the train to a stop.

Defendant contends that on this explanation and showing it was entitled to a directed verdict and that the trial court erred in denying its motion. But assuming that the fissure was the cause of the breaking of the rail and of the wreck, the question whether defendant had exercised reasonable care to avoid the accident was still one of fact for the jury and not one of law for the court. For instance, the court could not on the testimony have declared as a matter of law that a use of the Sperry detector more often than once every six months would have been physically, practicably or economically impossible, or that it was not otherwise reasonably necessary. As a matter of fact, it was not even shown that such a semi-annual use constituted the recognized standard in the railroad world for dealing with the technical problem.

Again, if the evidence as to the order given at Clinton to run the train slow on leaving Colo was properly admitted by the trial court (which question will be later considered), the engineer's admission that the train was late at the time and was traveling at 50 to 60 miles per hour also made the situation subject to the inference, in the light of the "slow order", that defendant had not fully explained all the circumstances connected with the accident and that a disregarding of the "slow order" (the reason for whose issuance was not shown) may perhaps have been a factor in the derailment. Further, the testimony of plaintiff, if believed, that the break in the rail seemed to be "part new and part rusty" and "looked like it had been partly broken before", and that the ties were "rotten and spongy-like", when considered with the evidence of speed and the engineer's admission that a mere partial break in the rail might not disrupt the electrical circuit, so as to cause the signal box in the engine to turn red as the train approached the point, similarly could be accepted by the jury as elements of inference on the inabsoluteness of defendant's explanation of the accident and on its possible causative factors.

In connection with what we have said, there must be kept in mind the emphasis in the recent decisions of the Supreme Court that the scope of jury inference in cases under the Federal Employers' Liability Act must be liberally and not narrowly or stultifyingly viewed. See Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Cf. also Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820. And traditionally, even more plenary than in cases requiring proof of specific negligence is the scope of inference which has been recognized as being open to a jury in situations of res ipsa loquitur.

Thus, it was said in the somewhat early case of Gleeson v. Virginia Midland Railroad Co., 140 U.S. 435, 444, 11 S.Ct. 859, 862, 35 L.Ed. 458: "When the plaintiff proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. * * * And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances."

Only where the defendant's evidence of explanation and exculpation is so legally absolute that no possible hypothesis of proximate negligence can reasonably survive it on the facts and circumstances of the accident is a court entitled to direct a verdict in a res ipsa loquitur case. Cf. Myers v. Pittsburgh Coal Co., 233 U.S. 184, 193, 34 S.Ct. 559, 58 L.Ed. 906. And these in cases under the Federal Employers' Liability Act will be situations of "the rarest exceptions". Terminal R. Ass'n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271, 276, 136 A.L.R. 789. See also Southern Ry. Co. v. Hussey, 8 Cir., 42 F.2d 70, 73, 74, 74 A.L. R. 1172.

Of even more specific application here is the recent decision of the Supreme Court in Jesionowski v. Boston & M.R.R., 329 U.S. 452, 458, 67 S.Ct. 401, 404, 91 L.Ed. ___, which, like this, was a derailment case and in which the court said: "Derailments are extraordinary, not usual, happenings. When they do occur, a jury may fairly find that they occurred as a result of negligence. * * It would run counter to common everyday experience to say that, where the defendant was the exclusive controller of all the factors which may have caused the derailment the jury was without authority to infer that either the negligent operation of the train or the negligent maintenance of the instrumentalities involved was the cause of the derailment."

The evidence which has been set out above and the authorities cited make unnecessary, we think, any further discussion of defendant's contention that there was no basis for allowing the...

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