Colorado Milling & Elevator Co. v. Terminal R. Ass'n

• Decision Date: 06 October 1965
• Docket Number: No. 17812.,17812.
• Citation: 350 F.2d 273
• Parties: COLORADO MILLING AND ELEVATOR COMPANY, a corporation, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

350 F.2d 273 (1965)

COLORADO MILLING AND ELEVATOR COMPANY, a corporation, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellee.

No. 17812.

United States Court of Appeals Eighth Circuit.

September 8, 1965.

Rehearing Denied October 6, 1965.

John J. Cole, of Heneghan, Roberts & Cole, St. Louis, Mo., for appellant.

Robert C. Ely, of Schwartz & Ely, St. Louis, Mo., Lyman J. Bishop, St. Louis, Mo., for appellee.

Before VOGEL, MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Terminal Railroad Association of St. Louis (Railroad) brought this action against Colorado Milling and Elevator Company (Industry) for reimbursement of an amount paid pursuant to a judgment obtained against it by an Industry employee. Recovery was claimed under the indemnity provisions of a side track agreement.¹ The Industry employee, Leeman C. Hahn, was injured because of the inefficient hand brake of the boxcar on which he was working.

The boxcar had been received in interchange by Railroad from the Missouri Pacific and spotted on the Industry track for unloading. It was filled with wheat consigned to Industry. Industry unloaded the contents into receiving pits by means of a "shaker" mechanism installed on one of the Industry tracks.² The boxcar was then nudged by a trackmobile to start its movement towards a point where it would again be picked up by Railroad. Hahn was positioned on a platform at the brake end of the car for the purpose of controlling its speed and thereby coupling it with a stationary cut of cars already emptied. With this movement, Hahn turned the brake wheel five or six times to remove the slack. As the boxcar attained its customary speed of about four to six miles per hour, Hahn endeavored to tighten the brakes to effectuate a proper coupling. After winding the wheel some eighteen to twenty-five times, the brake did not respond and the boxcar collided with the standing cars, throwing Hahn off and resulting in his injury.

Hahn sued the Railroad, alleging a violation of the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-16, and was successful.³ Hahn v. Terminal R. Ass'n., supra. Industry was requested to defend the action but refused, denying liability under the indemnity provisions of the agreement. Hahn's case was tried and decided on a violation of the Safety Appliance Act with the trial court refusing even to admit evidence of common law negligence.

Industry thereafter declined to reimburse the Railroad and this action was instituted. The case was brought in state court and removed on diversity grounds to the United States District Court for the Eastern District of Missouri. A jury was waived and the District Court decided in favor of the Railroad and entered judgment in the amount sued for. We affirm.

Industry's primary attack is leveled at the District Court's ruling that the evidence failed to show any negligence by the Railroad.⁴ It is first contended that under both Missouri and federal law a violation of the Safety Appliance Act constitutes "negligence" or "negligence per se." Indeed, some courts have used such terms in referring to violations of the Act, but the Supreme Court has made it implicitly clear that a violation of the Act is a breach of an absolute duty imposed by statute rather than negligence. This duty cannot be avoided by a showing of care — or a freedom from negligence, as the term is ordinarily used. Generally, actionable negligence presupposes fault which constitutes at least a part of the proximate cause of the resulting injury. In contrast, liability for breach of a statutory duty such as here involved is imposed irrespective of negligence which may or may not exist.

In discussing the absolute duty demanded by the Act, the Supreme Court said in Myers v. Reading Co., 331 U.S. 477, 482-483, 67 S.Ct. 1334, 1338, 91 L.Ed. 1615 (1947):

"Here it is not necessary to find negligence. A railroad subject to the Safety Appliance Acts may be found liable if the jury reasonably can infer from the evidence merely that the hand brake which caused the injuries was on a car which the railroad was then using on its line, in interstate commerce, and that the brake was not an `efficient\' hand brake."

The Court also quoted from the earlier case of Brady v. Terminal R. Ass'n, 303 U.S. 10, 15, 58 S.Ct. 426, 429, 82 L.Ed. 614 (1938):

"The statutory liability is not based upon the carrier\'s negligence. The duty imposed is an absolute one, and the carrier is not excused by any showing of care, however assiduous."

In O'Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949), attention was called to the fact that the Court had earlier "swept all issues of negligence out of cases under the Safety Appliance Act"; and in Carter v. Atlanta & St. Andrews Bay Ry., 338 U.S. 430, 433-434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949), the Court expressed that "this Court has repeatedly attempted to make clear that this is an absolute duty not based upon negligence * * *." Regarding the "normal efficiency" of the appliance in an action under the Safety Appliance Act, the Court stated in Affolder v. New York, C. & St. L. R. R., 339 U.S. 96, 98, 70 S.Ct. 509, 510, 94 L.Ed. 683 (1950), that "the duty under the Acts is not based on the negligence of the carrier but is an absolute one requiring performance `on the occasion in question.'"

Thus, the ruling of the Supreme Court conclusively indicates that a violation of the Safety Appliance Act does not imply that negligence, as that term is commonly used, was involved. Since negligence was not an issue in the Hahn case, supra, it follows that the Railroad does not stand convicted of negligence merely because of evidence of a violation of an absolute statutory duty.⁵

In a pretrial memorandum filed as a basis for denying motions of both parties for summary judgment, the District Court ruled that while proof of negligence was not a necessary element to recovery under the Safety Appliance Act, the Railroad "might be precluded from indemnification by Industry under the contract" by a showing that the inefficient operation of the appliance was in fact a result of Railroad's negligence, and not merely a matter of statutory liability. Thereupon, Industry locks on the argument that the Railroad was guilty of common law negligence in not furnishing it a reasonably safe car and in failing to make such an inspection as would disclose the defective condition of the hand brake.

The thrust of this contention is that Railroad's visual inspection of the hand brake apparatus, conducted from the ground, cannot reasonably be expected to reveal defects. Industry's expert testified that if the hand wheel was turned as many as twenty to twenty-five times without any braking action, there was a malfunction in the hand brake mechanism and that with respect to that brake, it had no braking action at all.⁶ However, the hand wheel on a properly functioning brake cannot be turned more than twelve revolutions. The resulting expertise was that the failure here was necessarily in the chain at a point approximately twelve feet above the ground or in the gear housing unit which is located atop the car immediately behind the hand brake wheel and which is completely enclosed. Only a defect in the chain would be detectable by visual inspection, while all other defects causing this type malfunction would be located inside the enclosed housing unit. In either event, all possible defects responsible for such a failure are more reasonably detectable by tightening the brake wheel twelve turns rather than walking beside the car and merely looking at the mechanism.

The Railroad admitted that no more than a visual inspection had been made of the hand brake apparatus. The housing had not been disassembled nor had an employee climbed on top of the car and wound the hand brake twelve times. It did not discover by visual inspection any defect or the car would have been "bad ordered" and sent to the rip track for repair. If any defect had been discovered, a report would have been filed reflecting the "bad order." No such report was filed although exception had been taken to a car in the same consignment from the inbound road.

The practice of other railroads in the St. Louis area is to make only a visual inspection of "hand brakes, safety appliances and under frames in the cars, running gear and undersils sic." Such inspections at interchange do not include climbing on the cars to set the hand brakes as such a requirement would greatly increase the number of car inspectors needed, and would greatly impede the movement of cars and trains through the terminal. An operational inspection at interchange is beyond the scope of that function and is not practical. See Lowden v. Hanson, 134 F.2d 348 (8th Cir.1943); Canadian Northern Ry. v. Senske, 201 F. 637 (8th Cir. 1912); Waddell v. A. Guthrie & Co., 45 F.2d 977 (10th Cir. 1930); Shankweiler v. Baltimore & O. R. R., 148 F. 195 (6th Cir. 1906).

The record contains no evidence of the nature of the defect in the hand brake or whether in fact it was defective at all other than its failure to function on one occasion after it had been delivered to and moved by the Industry. Furthermore, the evidence does not show when the defect, if any, would become ascertainable by any kind of inspection. It is not known whether the defect occurred before or after the car was spotted on Industry's track, although their expert was of the opinion that the shaking operation utilized by Industry to unload the car did not damage the brake mechanism and cause its malfunction. We think it possible, as did the District Court, that the brake defect could have arisen after the inspection by Railroad and after delivery to Industry. There is no evidence to the contrary.

It is strongly urged that this evidence did not justify the Court's conclusion that Industry had failed to discharge its burden of proving negligence on the part...