Chicago & NW Ry. Co. v. Kelly

• Decision Date: 14 July 1936
• Docket Number: No. 10465.,10465.
• Citation: 84 F.2d 569
• Parties: CHICAGO & N. W. RY. CO. v. KELLY.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 569 (1936)

CHICAGO & N. W. RY. CO. v. KELLY.

No. 10465.

Circuit Court of Appeals, Eighth Circuit.

July 14, 1936.

Alfred E. Rietz, of St. Paul, Minn. (William T. Faricy, of Chicago, Ill., and Warren Newcome, of St. Paul, Minn., on the brief), for appellant.

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

On October 24, 1932, at about half past four in the morning, at Carroll, Iowa, Paul C. Kelly, the appellee (plaintiff), a brakeman in the employ of the appellant (defendant), was injured when the wheels of a tank car ran over his left leg, requiring its amputation 8 or 9 inches below the knee. The car was included in a freight train moving in interstate commerce, and was the fourth car behind the locomotive. The train left Council Bluffs, Iowa, at about 1:15 a. m. October 24, 1932, for Boone, Iowa. At its point of origin, the train consisted of about 20 cars. Its first stop was Missouri Valley, Iowa, where 46 additional cars were added to the train, being placed ahead of the original 20 cars. The three cars behind the locomotive were box cars destined for Carroll, Iowa. The train's next stop was Denison, Iowa, where 8 cars were set out. It then proceeded to Carroll, 72 miles beyond Missouri Valley and 28 miles beyond Denison. At Carroll it headed in on the eastbound passing track for the purpose of letting a passenger train go by and to set out the 3 head cars. The freight train stopped at the coalhouse to refuel the engine. It then proceeded forward upon the passing track. Kelly, who was head brakeman, was riding the engine. It was his duty to uncouple the 3 head cars which were to be set out. In order to do that, he would be first obliged to go between the third and fourth cars, after the train had stopped, for the purpose of turning the angle cocks on the air line and disconnecting the air hose. Kelly left the engine while the train was moving 4 or 5 miles an hour and at a point where he claims he thought the uncoupling operation was to be performed, or, in other words, at a point which he estimated would leave him at the rear of the third car when the train came to a stop. It was dark at the time, and he had his lantern with him. He claims that, as the third car passed him, he realized that it would not stop at the point expected, and that he then attempted to mount the side of the third car near the rear end by grasping with both hands the handhold there located, at the same time placing his right foot in the stirrup; that the handhold came out at its forward end and threw him down with his left foot across the rail; that the train then moved about 60 feet before it stopped. Kelly brought an action under the Federal Employers' Liability Act, § 6 (U.S.C. title 45, § 56 45 U.S.C.A. § 56), alleging a violation of the Federal Safety Appliance Act of 1893, § 4 (45 U.S.C., § 4 45 U.S.C.A. § 4), based upon a defective handhold, which he asserted was the cause of his injuries. The defense was that Kelly was injured by going between the cars while they were in motion, in violation of the rules of the defendant railway company. The issues were clear cut and simple. They were: (1) Was Kelly injured because of a defective handhold? (2) If he was so injured, what damages was he entitled to recover? It was conceded that if the accident happened as Kelly claimed, he was entitled to damages, but that if it happened as the defendant claimed, he was not.

The first trial resulted in a verdict in favor of the plaintiff for $20,000. The defendant moved for a new trial, which motion was denied on condition that the plaintiff consent to a reduction of the verdict to $17,000, which was done. There was an appeal by the defendant, who claimed that the evidence was insufficient to justify the verdict, that counsel for the plaintiff was guilty of misconduct, and that the verdict was excessive. This court 74 F.(2d) 31 held the evidence sufficient to support the verdict, but reversed on the ground of counsel's misconduct in injecting into the case the fact that the plaintiff had two children to support. Upon the retrial of the case, the plaintiff had a verdict for $26,000. A motion for a new trial was made and denied, and this appeal followed.

The defendant again asserts the insufficiency of the plaintiff's evidence to sustain the verdict; complains of certain rulings upon evidence, certain instructions of the court, and the refusal of requested instructions; and charges misconduct of plaintiff's counsel in his closing argument to the jury.

In so far as the questions arising upon this second appeal are substantially the same as those presented upon the first, they are ruled by our former opinion. 74 F. (2d) 31. American Surety Co. of New York v. Bankers' Savings & Loan Ass'n of Omaha, Neb. (C.C.A.8) 67 F.(2d) 803; Claiborne-Reno Co. v. E. I. Du Pont de Nemours & Co. (C.C.A.8) 77 F.(2d) 565; Northern Pacific Railway Co. v. Van Dusen Harrington Co. (C.C.A.8) 60 F.(2d) 394.

The evidence introduced upon the second trial was not identical with that introduced at the first trial, but the issues were identical. The testimony of the plaintiff was the same. If true, he was entitled to recover. The defendant contends that it was not true and that it was contradicted by physical facts conclusively proved; namely, by proof tending to show that the plaintiff went between the cars and that the handhold was not loose at the time of the accident. The testimony that Kelly went between the cars was the same upon the second trial as upon the first, and the evidence that the handhold was not loose at the time of the accident was substantially the same. There was no direct evidence on either trial that the handhold was not in the condition that Kelly claims it was, and no witness was produced who saw it intact after the accident. All witnesses who saw it say that it was loose and hanging down when they looked at it after Kelly was hurt. There was evidence at both trials that it was not loose at Missouri Valley. Bolitho, the rear brakeman, testified that he used it at that place, and that it was then fast. Testimony as to inspections of the car, made shortly before the accident, indicated no defective handhold, while expert testimony introduced by the defendant was to the effect that the handhold had been loosened with a wrench. All of this evidence tended to support the defendant's theory that the handhold was not loose at the time of the accident, but was loosened by some one after the accident had occurred, for the purpose of making it appear that Kelly's injuries had been caused by a defective handhold. This, however, was the same theory advanced upon the former trial, and was based upon substantially the same facts and circumstances. It is true that the defendant produced an additional nut and bolt expert on the second trial, and that the plaintiff produced no one to rebut the expert evidence of the defendant. The expert evidence, if believed, would have justified the conclusion that the handhold did not shake loose; but no expert expressed an opinion as to when a wrench was applied. The inference that it was after the accident was based upon motive, opportunity, the finding within a short time after the accident of a wrench in the tool box of a switch engine which, at the time of the accident, was standing near the place where the accident occurred, which wrench showed evidence of having been used upon nuts similar to those with which the handhold was fastened to the car, and the possibility that the engineer of the switch engine, who was one of the first men to reach Kelly after he was hurt, was informed by Kelly of his plight and went to the handhold, some 50 or 60 feet away, and loosened it with his wrench. The defendant's evidence would have permitted, but certainly did not compel, a finding that the plaintiff was not hurt in the manner claimed by him; and the court committed no error in denying the defendant's motion for a directed verdict.

It was not error to permit the plaintiff to cross-examine Bolitho, the rear brakeman, whom he called as his own witness upon rebuttal. Bolitho was an employee of the defendant, and had testified on its behalf as to the condition of the handhold at Missouri Valley. He was not a witness friendly to the plaintiff. It was therefore within the discretion of the court to permit the plaintiff to cross-examine him. London Guarantee & Accident Co., Limited, v. Woelfle (C.C.A.8) 83 F.(2d) 325. There is, however, one matter in this connection to which attention should be called: After plaintiff's counsel had examined this witness on rebuttal, he (the witness) was cross-examined by defendant's counsel. Bolitho stated that he did not loosen the handhold. It clearly appeared that he was not present when the accident happened. He was asked, "Did you have any suspicion that somebody had taken it off?" Counsel for plaintiff, instead of objecting to this question, said, "Go ahead and answer it." Bolitho's answer was, "Yes, sir." He was then cross-examined by plaintiff's counsel at great length about his suspicions and as to why he had not mentioned them to an investigator for plaintiff, named Lush, to whom he had given a statement with respect to the accident. Whether Bolitho had suspicions or whether he had none was of no materiality whatsoever in the trial of this case. Issues are not to be determined upon the conjectures, imaginings, or suspicions of witnesses. The court of its own motion should have excluded all reference to the suspicion of Bolitho. Since the defendant first injected this suspicion into the case, it is in no position to complain of the plaintiff's having taken advantage of it in further examining Bolitho, but the suspicion had no bearing upon any issue before the jury.

There is no merit in the claim that it was error to permit...