DETROIT, T. & IR CO. v. Banning

• Decision Date: 05 April 1949
• Docket Number: No. 10744.,10744.
• Parties: DETROIT, T. & I. R. CO. v. BANNING.
• Court: U.S. Court of Appeals — Sixth Circuit

173 F.2d 752 (1949)

DETROIT, T. & I. R. CO. v. BANNING.

No. 10744.

United States Court of Appeals Sixth Circuit.

April 5, 1949.

Henry C. Bogle, of Detroit, Mich. (Henry C. Bogle and Harold A. Johnson, both of Detroit, Mich. on the brief; Bodman, Longley, Bogle, Armstrong & Dahling, of Detroit, Mich., of counsel), for appellant.

Harrison T. Watson, of Detroit, Mich., and Lloyd T. Bailey, of Chicago, Ill. (Harrison T. Watson, of Detroit, Mich., and Lloyd T. Bailey, of Chicago, Ill., on the brief; Bailey & Lyons, of Chicago, Ill., of counsel), for appellee.

Before SIMONS, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The Appellant Railroad Company appeals from a judgment of the District Court in favor of the appellee in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60. The principal issue presented is whether the charge of the District Judge to the jury correctly presented the issue of negligence under the evidence received by the jury.

Appellee Banning was employed by the Appellant in July, 1945 as a brakeman. At the time of the accident on September 23, 1946, he was working as a member of a switching crew which was making up a freight train. It had been raining all day. During the evening, the crew took a Diesel engine into a siding leading to a gravel quarry and picked up about 8 gondola cars loaded with gravel. The engine backed out of the siding, temporarily dropped the gondola cars and continued backward into another siding behind a distillery to pick up two box cars. Banning performed the coupling in this operation. In doing so he alighted from the engine and walked around on the road bed. At this point there was a thin layer of mud about two inches thick and Banning got mud on his boots. The crew worked on this siding for about 15 minutes. After coupling the cars, Banning got upon the engine and stayed there about 3 or 4 minutes before it pulled out. He was in a position where he could talk to the engineer and fireman. He was not on the ground again in that area.

The engine pulled the two box cars back to the location of the gondola cars where it again coupled with them. Banning made this coupling, but the ground was solid road bed with no mud. The engine then continued its backward course to the south, out of the quarry siding, into the main line, pushing the two cars from the distillery and pulling the cars from the quarry. The cars from the quarry were then cut off and left standing with brakes locked. The engine continued backing southwardly down the main line pushing the two cars to a point about 1,000 feet to the south of where it had left the other cars standing. Then the crew proceeded to make a drop or a flying switch in the following manner: The engine started northward pulling the two cars toward the standing cars and got up a speed of 12 to 14 miles per hour. It then slowed down and created a slack between it and the two cars which were uncoupled from the engine. The engine then speeded up and passed over a switch leading from the main line down a dead end siding. After the engine went off into the siding the switch was immediately thrown back so that the free running cars following the engine passed on and continued down the main line. They would thus run into and become coupled to the standing cars from the quarry, eliminating the engine from the middle. The combined cars were to be then pushed to the yards.

Banning was on the front end of the box car nearest the engine. He uncoupled the cars from the engine when the engine created slack. He then climbed a ladder on the moving car to a brake platform where it was his duty to operate the hand brake in order to control the speed of the box cars and slow them down so that they would make an easy contact and an automatic coupling with the standing cars. Banning claims that although he continuously applied the brake the cars had been pushed at such a speed that he only succeeded in slowing them to a speed of six or seven miles per hour when they hit the standing cars, and that the resulting impact and crash threw him off the brake platform on to the gravel car and then down on to the road bed. At the time of the collision he was standing on the platform with a firm foothold and with both hands on the brake wheel. He described the impact as having jerked his hands and feet loose. The accident occurred about 8:00 p. m. There was a misting or light rain at the time. Banning received injuries to his back.

At the close of all the evidence the Appellant moved for a directed verdict. The Court reserved decision on the motion and submitted the case to the jury. The jury found for the appellee in the sum of $41,000. Appellant's motions for judgment non obstante veredicto and for a new trial were overruled and judgment was entered on the verdict.

The District Judge charged the jury in part as follows: "Plaintiff has charged in his complaint that the defendant failed to furnish him a safe place in which to work, in two respects; first, that he was directed and required to work in the yard under muddy conditions, so that his boots became slippery and covered with mud; and, second, that defendant dropped the car upon which plaintiff was riding in the performance of his duties, at such a high, dangerous and excessive rate of speed that plaintiff did not have the opportunity to bring it to a stop by means of the braking apparatus * * * so that plaintiff was thrown therefrom to the ground and road bed, sustaining injuries complained of." He further said: "Now, of course, in a case of this type, under the law under which the action is brought here, no recovery may be had unless you find that defendant was negligent in one or the other respects as claimed by the plaintiff. * * It is the law that it was the duty of the defendant railway company towards the plaintiff to exercise reasonable care, to furnish him a reasonably safe place in which to work." Appellant contends that the evidence was insufficient to submit the case to the jury under either of the two claims of negligence, namely, (1) requiring the appellee to work under muddy conditions, and (2) performing the switching operation at a dangerous and excessive rate of speed.

There was a conflict in the evidence as to the speed at which the switching operation was performed. Banning testified that the engine and the two cars were traveling at a speed of from 12 to 14 miles an hour at the time the drop was made; that by the time he had ascended the ladder and reached the braking platform just before the cars crossed Harrison Avenue the speed was about 10 or 11 miles an hour; that at the time of the impact the speed was about 6 or 7 miles an hour, and that he was unable by the use of the brake to reduce the speed below that. A brakeman, who was standing by the tracks on Harrison Avenue, estimated the cars were traveling 3 to 4 miles per hour when they passed him. No defect in the brake was claimed or shown. Appellant's evidence also was to the effect that the first of the gondola cars was from 200 to 230 feet north of Harrison Avenue that the grade from Harrison Avenue to the gondola cars was absolutely level, and that according to Banning's own estimates it would take the box cars more than 17 seconds to cover the distance from Harrison Avenue to the point of impact. It is contended that Banning's testimony is consistent with failure on his part either to apply sufficient pressure to the brake when he had plenty of opportunity to do so, or with his own failure of judgment in waiting too long before applying the...