Atlantic Coast Line Railroad Co. v. Shields, 15193

• Decision Date: 17 March 1955
• Docket Number: No. 15193,15072.,15193
• Citation: 220 F.2d 242
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. W. A. SHIELDS and Southern Railway Company, Appellees. W. A. SHIELDS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

220 F.2d 242 (1955)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. W. A. SHIELDS and Southern Railway Company, Appellees.

W. A. SHIELDS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.

Nos. 15193, 15072.

United States Court of Appeals, Fifth Circuit.

March 17, 1955.

No. 15072:

Albert W. Copeland, John C. Godbold, Montgomery, Ala., for appellant.

Marion Rushton, Drayton Hamilton, Evans Hinson, Montgomery, Ala., Edgar A. Stewart, Selma, Ala., for appellees.

No. 15193:

Evans Hinson, John C. Godbold, Albert W. Copeland, Montgomery, Ala., for appellant.

Edgar A. Stewart, Selma, Ala., D. W. Hamilton, Marion Rushton, Montgomery, Ala., for appellees.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

This is another case like O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187; Carter v. Atlanta & St. A. B. Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236, and Affolder v. New York, Chicago & St. Louis R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683, in which a claimant, for injury resulting from defects in a railroad car, invokes both the absolute liability imposed by the Safety Appliance Acts, 45 U.S.C.A. §§ 1 to 46, and the qualified liability arising out of negligence. In those cases it was negligence under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51 to 60. Here it is negligence at common law.

In those cases, particularly in the O'Donnell case, the Supreme Court points to the wide spread confusion attending the anomalous procedure employed in prosecuting such claims.¹ The same difficulties have made themselves felt here with the result that on the appeal of the Atlantic Coast Line Railroad Company, the judgment must be reversed and the cause remanded.

The matter stands differently, however, on the appeal of plaintiff from the judgment upon a directed verdict as to the Southern Railway Company. For the reasons hereafter stated, as to it this judgment must be affirmed.

Brought against the Atlantic Coast Line Railroad Company, as the delivering, the Southern Railway Company, as the originating, carrier, the suit was for damages for personal injuries received by plaintiff, an independent contractor and invitee, as the result of the breaking when he stepped upon it of a dome step on a tank car which he had been engaged to unload.

Complying with the admonition of the court in the O'Donnell case, supra, the complaint was in two counts. Count One charged that the dome step was a safety appliance, and that its breaking was a violation of the Appliance Acts. Count Two charged that the defendants negligently furnished and tendered, for the unloading of the gasoline therein, a defective tank car.

In addition to a general denial, the Atlantic Coast Line alleged as to the first count, (1) that the dome step was not a safety appliance within the meaning of the act, and (2) that if it was, plaintiff, not being a railroad employee, was not entitled to the benefits of the act.

As to the second count, the charge of common law negligence, it alleged: that the board which gave way had been newly painted; that the defect in it was not a patent but a hidden defect, which could not have been discovered by the use of ordinary care; and that the Atlantic Coast Line, as a delivering carrier, was not as matter of law, and could not be found, guilty of negligence in handling the car.

The Southern Railway alleged: that the Alabama Statute of Limitations of One Year had barred the cause of action as to it, and (2) that it was not the originating carrier, and that it had never had the car in its possession.

On the issues thus joined, the cause was tried to a jury on evidence which included uncontradicted evidence: that the New Orleans and Northeastern Railroad Company was the initial carrier of the car; that the Southern Railway Company had at no time had anything to do with its handling; and that, though the stock of the New Orleans and Northeastern Railroad Company was solely owned by it, Southern Railway Company was an absolutely separate corporation; that it did not operate its subsidiary; and that it had never handled the car.

The district judge, therefore, instructed a verdict for the Southern Railway and submitted the cause to the jury as to the Atlantic Coast Line on both counts and on a general charge.

There followed a general verdict and judgment for $7500.00 against Atlantic Coast Line from which that defendant has appealed, while plaintiff has appealed from the judgment in favor of the Southern Railway Company.

Here the Atlantic Coast Line insists that it should have had an instructed verdict on both counts, and that the judgment must be reversed and rendered for it. As to the first count, it claims: (1) that the dome step or platform was not a safety appliance; and (2) that if it was, plaintiff may not invoke the benefit of the act. As to the second count, its claim is that the evidence establishes as matter of law: that the defect in the board was not patent but latent; and that defendant had made the usual careful inspection of the car and the defect complained of was not discoverable upon such an inspection.

In the alternative, it urges upon us that if it was not entitled to an instructed verdict throughout, it was certainly entitled to an instruction as to Count One, and, finally, that if it was not entitled to an instructed verdict at all, there were errors in the charge and in the refusal of its requested instructions which require a reversal.²

We find ourselves in complete agreement with the position taken and the reasons given for that position in the appellant's brief with respect to the first count. This is that when a railroad company has complied with the regulations prescribed by the Interstate Commerce Commission, pursuant to the authority delegated to it in 45 U.S.C.A. § 11 et seq., it "* * * has discharged its full duty so far as the ladder or any other safety device requirement of the Safety Appliance Act is concerned. The judgment of the trial court and jury cannot be substituted for that of the commission." Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 57 S.Ct. 541, 543, 81 L.Ed. 748; Apache Ry. Co. v. Shumway, 62 Ariz. 359, 158 P.2d 142, 159 A.L.R. 857.

We agree with the appellant that the dome step is not, within the classification of the I.C.C., a running board, and that, in assuming, without any basis in law for the assumption, that it was a safety appliance, the court erred. He did correctly declare in his charge: that whether it was or was not a safety appliance was to be determined as matter of law; and that he did not and would not consider the testimony of any of the witnesses as to whether it was or was not. Without, however, any basis in the statute or in any order or regulation of the Commission for so holding, he did determine as matter of law that it was a safety appliance. So determining, he advised the jury that it was not for it to determine whether it was or was not such, but only whether it was safe, and thus imposed upon the defendant, as to the dome step, the absolute obligation imposed by the statute only with respect to safety appliances. In doing this, he erred.

As appellant correctly points out in the discussion in its brief, a chaotic condition would be produced if the question of compliance with the Safety Appliance Act and the specifications governing the number, location, dimension and manner of appliances should be left to the varying notions of judges or the inexperienced laymen who comprise petit juries. For it is not every device with which a car might be equipped which comes under, and is governed by, the Safety Appliance Act or the regulations adopted by the Interstate Commerce Commission pursuant thereto. Only those are safety appliances which are officially determined by law or regulation to be such....