Affolder v. New York, C. & St. LR Co.

• Decision Date: 28 July 1948
• Docket Number: No. 5773.,5773.
• Parties: AFFOLDER v. NEW YORK, C. & ST. L. R. CO.
• Court: U.S. District Court — Eastern District of Missouri

79 F. Supp. 365

AFFOLDER v. NEW YORK, C. & ST. L. R. CO.

No. 5773.

District Court, E. D. Missouri, E. D.

July 28, 1948.

Mark D. Eagleton, of St. Louis, Mo., for plaintiff.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., all of St. Louis, Mo., for defendant.

HULEN, District Judge.

Plaintiff was employed by defendant as a switchman in its yards in Fort Wayne, Indiana. On the night of September 24, 1947 defendant was engaged in a switching operation of freight cars. Two of the cars failed to couple automatically by impact, with the result that part of the cut of cars farthest from the engine, by reason of the failure to couple automatically on impact, commenced to move down grade on the switch track. It was plaintiff's duty to stop such a movement. Plaintiff was in a place of safety some distance from the track the movement was on, and upon seeing the cars moving immediately started toward them at a rapid gait, with the intention of going on the cars and setting the brake to stop the movement and avoid damage that might otherwise result. When he had reached a point near where he intended to board one of the cars, for some unexplained reason he slipped or tripped and fell. His right leg went over the rail, the car passed over it, and he received injuries which resulted in its amputation, leaving a stump about four inches long. At the time of injury he had been employed by defendant about seven and one-half years. He was earning approximately $400 per month. He was thirty-five years of age. He testified his leg had given him constant pain since injury was received and he had lost some thirty pounds in weight. A doctor called by plaintiff testified the scar on the stump was adherent and painful, that there was a "hot spot" at the end of the nerve, and that further surgery will be required to shorten the bone and remove scar tissue to relieve the pain and permit plaintiff to wear an artificial limb. The doctor was guarded in his opinion as to extent of success with which plaintiff could wear an artificial leg. Because of the shortness of the stump a special type of "table" artificial limb would be required. The flection of the limb is markedly reduced. There was no injury suffered to any other part of his body. The jury returned a verdict for plaintiff for $95,000. Plaintiff's case was based on the Safety Appliance Acts, 45 U.S.C.A. §§ 1-46, — that defendant permitted cars to be used on lines controlled by it which were not equipped with couplers coupling automatically on impact.

Defendant argued and has briefed three assignments of error:

(1) The charge to the jury failed to submit defendant's theory of the case.

(2) The verdict is excessive.

(3) There is a failure of proof that violation of the Safety Appliance Act was the proximate cause of plaintiff's injury.

I. That portion of the charge complained of reads as follows:

"The Court instructs the jury that under the law in this case the defendant had an absolute and continuing duty not to haul or use on its line any car not equipped with couplers coupling automatically by impact, and it was not only the duty of the defendant to provide such couplers, but it was under the further duty to keep them in such operative condition that they would always perform their functions. Therefore, the plaintiff, in order to discharge the burden of proving a breach of this duty, is not required to prove the existence of any defect in any such coupler, but need only prove that any such coupler did in fact fail to couple automatically by impact."

By brief defendant states its position with reference to the charge as follows:

"This instruction, which was not modified or conditioned by others parts of the charge, was in effect a direction to find for the plaintiff. There was no question that the cars did not couple upon impact. The only question was as to the cause of the failure. Defendant contended that there was no inherent defect in either coupler which caused them not to couple, but a failure of Tielker, the switchman, to open the knuckles before the impact. Your Honor's charge as quoted deprived defendant of this theory of defense, for plaintiff had only to `prove that any such coupler did in fact fail to couple automatically by impact.'"

The charge must be considered as a whole. The jury was so instructed. We cannot agree with defendant the charge was susceptible of interpretation by the jury as a "direction to find for the plaintiff", or that the charge "deprived defendant of this theory of defense". When-considered as a whole we believe defendant's "theory of defense" was presented to the jury. As set out in defendant's brief the case was tried by defendant and its defense was "that there was no inherent defect in either coupler which caused them not to couple, but a failure of Tielker, the switchman, to open the knuckles before the impact" which was the cause and failure of the coupling to couple on impact. If the plaintiff's injuries resulted from the action of Tielker, as urged by defendant, negligence of a fellow servant, to-wit Tielker, was the proximate cause of plaintiff's injury and not violation of the Safety Appliance Act by defendant.

Going directly to defendant's claim that its theory of defense was not submitted and therefore defendant was "deprived" of it, following that part of the charge isolated and quoted by defendant in its brief the following appears in the charge:

"Now, I charge you in this case that if you find and believe from the evidence that at the time and place mentioned in evidence, defendant was hauling or using on its lines one or more cars equipped with couplers which did not couple automatically on impact, and that by reason thereof a separation occurred between the Pennsylvania hopper car and the Rock Island box car, and that said separation was to a failure on the part of the couplers of either car to function properly and to couple automatically on impact, then in that event you are instructed that the defendant violated the Safety Appliance Act that I have referred to."

It will be seen from this portion of the charge that coupled conjunctively with the requirement that the jury find that the cars were equipped with couplers that did not couple automatically on impact, the jury must also find that the separation "was due to a failure on the part of the couplers of either car to function properly * * *". The jury was further charged:

"On the other hand, if you should find and believe from the evidence that the separation of the cars, that is, the Pennsylvania car and the Rock Island car, was due to some other cause, that a failure to provide couplers coupling automatically on impact did not cause it, or that the separation of the cars, regardless of its cause, was not the proximate cause of plaintiff's injuries, then your verdict in this case should be for the defendants."

Following the above paragraph the jury was told that plaintiff did not found his claim upon negligence, and with respect to the conduct of Tielker, which defendant claims was the cause of the failure of the couplers to couple automatically on impact, the jury was specifically instructed:

"But similarly, plaintiff has no right to recover in this suit for any negligence of the defendant, if any has been shown; so you can not hold the defendant liable in this case for any act or failure to act of Tilker, who said he was a pin man in the engine crew, and as I recall, he testified lto opening the coupling so it would couple on contact, but he said that the car to which it was being shoved or kicked, or any other employee, or any defect or obstruction in the condition of the yards, that it not in this case."

Counsel for plaintiff and defendant argued their respective positions fully before the jury. The charge was in conformity with their argument. We believe the subject was covered sufficiently by the charge that there could be no misunderstanding by the jury and defendant is without any basis for this assignment of error.

II. The verdict in this case is large. The question is whether it is so excessive as to call for interference by the Judge — a course we adopt only if it appears the jury disregarded the instructions as to measure of damages. Bearing in mind the extent of plaintiff's injuries, his education, station in life, and character, and viewing the evidence as to damages most favorable to plaintiff in the light of the rule that amount of damages is primarily for the jury to determine, we believe his earning capacity, on recovery, should be at least approximately 40% of what it was prior to injury.

In the case of Gulf, C. & S. F. Ry. Co. v. Moser, 275 U.S. 133, 48 S.Ct. 49, 72 L.Ed. 200, the Supreme Court referred to the case of Chesapeake & O. R. Co. v. Kelley, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367, as announcing an applicable rule to compute damages recoverable for the deprivation of future benefits, and referring to the Kelly case said 275 U.S. 133, 48 S.Ct. 50:

"The interpretation approved by us has become an integral part of the statute. Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. It should be accepted and followed".

In the Kelly case the Supreme Court said 241 U.S. 485, 36 S.Ct. 632:

"* * * in computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only."

In determining the present value of payment for future earnings the Court said:

"* * * But, as a rule, and in all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded, the ascertained future benefits ought to be discounted in the making up of the award.

"We do...