Reed v. Philadelphia, Bethlehem & New England R. Co.

Citation939 F.2d 128
Decision Date31 July 1991
Docket NumberNo. 91-1079,91-1079
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
PartiesCharles N. REED, Appellant, v. PHILADELPHIA, BETHLEHEM & NEW ENGLAND RAILROAD COMPANY.

Marvin I. Barish (argued), Philadelphia, Pa., for appellant Charles N. Reed.

Norbert F. Bergholtz (argued), Nancy J. Bregstein, Frank J. O'Hara, Dechert Price & Rhoads, Philadelphia, Pa., for appellee Philadelphia, Bethlehem & New England R. Co.

James V. Dick, Squire, Sanders & Dempsey, Washington, D.C. (Charles F. Clarke, Elizabeth A. Rader, Squire, Sanders & Dempsey, Cleveland, Ohio, of counsel), for the Association of American Railroads, amicus curiae.

Before SLOVITER, Chief Judge, and GREENBERG and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this Safety Appliance case we conclude that the district court properly charged that, if its equipment is not defective, a railroad may invoke the defense that railcars did not couple automatically because the couplers were out of alignment. We also determine that although plaintiff's counsel's closing argument went beyond the bounds of legitimate advocacy, that dereliction does not permit defense counsel to respond by referring to objectionable Plaintiff, Charles Reed, was a freight conductor who was injured on May 7, 1986 in the course of his employment with defendant Philadelphia, Bethlehem & New England Railroad. He brought suit under the Federal Safety Appliance Act and the Federal Employers' Liability Act, but withdrew the latter count shortly before trial.

evidence not in the record. Because of the effect of those comments, we will reverse the judgment in favor of defendant and remand for a new trial.

On the day of the accident, Reed and his crew were assigned the task of weighing the train cars. To accomplish this, the workers were to "cut," or uncouple, each car and allow it to pass across an automatic scale on the tracks. The cars were then to reconnect at a point beyond the scale.

Reed uncoupled a boxcar from the rest of the train. He climbed aboard, and rode it down beyond the scale. After he signaled, the crew uncoupled the next car, a scrapcar. The scrapcar passed over the scale, and contacted the boxcar but failed to couple with it on impact.

Reed then went between the two cars and found the knuckles on both couplers closed. He first opened the knuckle on the boxcar, using a lever located on the outer-edge of the car. He attempted the same maneuver on the scrap car, but testified that the lever did not function. He stepped between the two cars to open the knuckle. As he was so engaged, the scrap car lurched forward, amputating part of his foot.

The case was tried to a jury. During closing arguments, plaintiff's counsel made emotional and misleading comments. To counter this, the trial judge permitted defense counsel to tell the jury that plaintiff received disability benefits.

The trial judge submitted the case to the jury on the plaintiff's theory that the railroad was liable on proof that the cars failed to couple automatically on impact and that the cutting lever on the scrap car was defective. The court also instructed the jury to consider the railroad's defense that the cars failed to couple because the couplers were out of alignment and the cutting lever was, in fact, operable.

In response to an interrogatory, the jury found that the railroad had not violated the Safety Appliance Act. Accordingly, the court entered judgment for the railroad. Plaintiff's post-trial motions were denied, and this appeal followed.

This appeal presents two unrelated issues: the application of the Safety Appliance Act and defense counsel's comments to the jury in the closing argument.

I. FEDERAL SAFETY APPLIANCE ACT
A. THE EQUIPMENT

Individual railroad cars are attached by couplers, which are devices located at both ends of all train cars providing a means for connecting one car to another. The standard coupler consists of a knuckle attached to a drawbar. In simplistic terms, the drawbar is connected to the car, the knuckle is connected to the other end of the drawbar, and on coupling the knuckle connects to the knuckle of another car.

The knuckle may be loosely described as a sort of clamp with moveable jaws that may be opened and closed as required. When the knuckle of one car is open and is brought in forcible contact with the knuckle of another car, the knuckles will close automatically and lock into place, making a firm connection between the two cars. The jaws of the knuckle are opened by the use of a lever at the side of the car. When the equipment is functioning properly the crew need not step between the ends of the cars to open the knuckles.

The drawbar can be thought of as a pivot moving in a horizontal plane. It has dual functions--first to anchor the knuckle to the car and, second, to move somewhat from side to side so that the knuckle can move laterally as the railroad car travels around a curve. If the drawbar were rigid and had no lateral movement, cars would be derailed as they move through curves. Although drawbars must have some play, too much lateral movement may result in To function automatically, couplers must be in a "mating" position. That is, each drawbar must be aligned with its mate and one of the knuckles must be opened. If not aligned properly, the knuckle of one car will not contact the other and the cars will not couple.

misalignment and failure of the coupling operation.

Drawbars are aligned manually, but they sometimes move out of position because of the vibration and movement of the railroad car. Therefore even if a crewman corrects the alignment before a car begins its movement toward the point where coupling is to occur, it is possible that the car's motion may jar the drawbar out of position. Aligning the drawbar requires the crewman to go between the cars.

Failure to couple because the couplers are not in the proper position may be described as misalignment of the drawbar. The legal significance of misaligned drawbars is the issue on which we focus.

B. THE LAW

In the early days of railroading, crewmen suffered an alarming number of injuries when forced to step between cars to operate the coupling devices then in use. Taking notice of the harm caused by defective and inadequate equipment, Congress in 1893 enacted the Safety Appliance Act. Section 2 of that legislation requires railroads to use automatic coupling devices. In its present form, the Act prohibits railroads from using cars "not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of cars." 45 U.S.C. Sec. 2.

In response to the Act, railroads adopted automatic couplers whose knuckles are opened by levers at the outside edge of the cars. No device, however, has yet been put into wide-spread use that would automatically align the drawbar. 1

In construing the Safety Appliance Act, the Supreme Court has imposed absolute liability for "equipment defects," making it clear that the failure of coupling equipment to perform "as required" by the statute was "in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability--a liability that cannot be escaped by proof of care or diligence." O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949); see also United Transportation Union v. Lewis, 711 F.2d 233, 248-51 (D.C.Cir.1983) ("predicate for liability under section 2 is the failure to provide equipment that functions as the statute commands").

The Supreme Court has emphasized 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.' " Affolder v. New York, C. & S.L. R.R. Co., 339 U.S. 96, 98, 70 S.Ct. 509, 510, 94 L.Ed. 683 (1950). Because equipment failure itself suffices to fasten liability upon the railroad, an injured railworker need not show a defect in the coupler to recover for his injuries.

Nevertheless, liability for equipment failure under the Safety Act does not preclude some defenses arising out of operation of the equipment. The Affolder Court pointedly noted that, "Of course this assumes that the coupler was placed in a position to operate on impact. Thus, if 'the failure of these two cars to couple on impact was because the coupler [knuckle] on the Pennsylvania car had not been properly opened,' the railroad had a good defense." Id. at 99, 70 S.Ct. at 511. A majority of the Court concluded that the trial judge's charge to the jury had adequately explained this proposition. In dissent, Justice Jackson opined that the jury charge had failed to clarify the issue, but he agreed with the majority on the rule of law: "Before a failure to couple establishes a defective coupler, it must be found that it was Affolder stands for the proposition that if the jaws of both knuckles are closed at the time of impact, then the railroad may offer evidence to explain the mishap and the failure to couple does not, in and of itself, establish a per se violation of the Act. The Affolder case, however, did not present facts dealing with another frequent cause of failed coupling which we discussed earlier, that is, misalignment of the drawbar.

                properly set so that it could couple.  If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device."    Id. at 101, 70 S.Ct. at 512 (Jackson, J., dissenting)
                

The Supreme Court cryptically referred to the misalignment problem in Atlantic City R.R. Co. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 61 L.Ed. 150 (1916), where plaintiff was injured while straightening the drawbar. After acknowledging that "[s]ome lateral play must be allowed to drawheads," the Court said, "[i]f couplers failed to couple automatically upon a straight track, it at least may be said that a jury would...

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