Barnett v. Terminal R. Ass'n of St. Louis

• Decision Date: 12 February 1953
• Docket Number: No. 14692.,14692.
• Citation: 200 F.2d 893
• Parties: BARNETT v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F.2d 893 (1953)

BARNETT v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 14692.

United States Court of Appeals Eighth Circuit.

January 16, 1953.

Rehearing Denied February 12, 1953.

Forrest Boecker, Clayton, Mo., for appellant.

Wayne Ely, St. Louis, Mo. (Joseph H. Miller and Richard B. Elster, St. Louis, Mo., on the brief), for appellee.

Before SANBORN, RIDDICK, and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

Ferriel M. Barnett, a car inspector and repairman employed by the Terminal Railroad Association of St. Louis, an interstate carrier, was injured on December 29, 1950, when he was struck on one knee by the end of an air hose coupling which suddenly came apart. He brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages, upon the claim that the accident and his injuries were caused by the negligence of the defendant (appellee). The defendant denied liability.

The case has been tried twice. On the first trial the jury disagreed. Before the case was set for retrial, the plaintiff moved for leave to dismiss without prejudice. The District Court denied the motion upon the ground that it would be unfair to the defendant to permit such a dismissal without requiring the plaintiff to pay the expenses and reasonable attorneys' fees incurred by the defendant, and that it appeared that the plaintiff could not pay such expenses and fees.

The case was again tried to a jury. At the close of the plaintiff's evidence, the defendant moved for a directed verdict in its favor on the ground that the evidence failed to show that the accident was due to any negligence on its part. The motion was granted, and the plaintiff appealed from the ensuing judgment.

Two questions are presented for review: (1) Did the court err in denying the plaintiff leave to dismiss his action without prejudice? (2) Did the court err in directing a verdict at the close of the plaintiff's evidence?

The first of these questions must be answered in the negative. Under Rule 41(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., a plaintiff, after answer has been served, has no absolute or unqualified right to dismiss his action without prejudice. Home Owners' Loan Corporation v. Huffman, 8 Cir., 134 F.2d 314, 318. A District Court, in the exercise of a sound judicial discretion, may, as a condition for permitting a plaintiff to dismiss without prejudice after an answer has been filed, require him to pay the expenses and reasonable attorneys' fees incurred by the defendant. New York, C. & St. L. R. Co. v. Vardaman, 8 Cir., 181 F.2d 769, 771 and cases cited.

The second question is more difficult. The plaintiff in his complaint alleged that on December 29, 1950, he was inspecting brake shoes and making an air test on certain passenger cars in the defendant's yards in St. Louis, Missouri, and that while he was tightening a steam hose coupling between two of these cars, the air hose coupling between the cars burst apart, striking and injuring him. The plaintiff charged that the defendant was guilty of actionable negligence (1) in requiring him to work between cars so situated that the air hose coupling was likely to burst apart when the air pressure was turned on; (2) in assuring him that the place he was working was safe, when it was not safe; (3) in failing to provide means for releasing the air pressure in the coupling while he was working near it; (4) in failing to furnish sufficient personnel safely to perform the duties required of the plaintiff; (5) in failing to instruct him as to how to perform his duties safely; (6) in applying excessive and dangerous air pressure to the coupling which burst apart; (7) in failing to provide adequate means to inspect the equipment and to discover and replace defective equipment; and (8) in failing to guard against the likelihood of an internal explosion in the air hose.

The only evidence at the trial bearing on the issue of liability was that of the plaintiff himself. His testimony showed that he was fifty-one years of age; that he had been a machinist and a railroad man for about thirty-eight years; that he started to work for the defendant in August, 1948, as a car inspector and car repairman; that on December 29, 1950, his working hours were from 12:30 A.M. to 8:30 A.M.; that for two days each week the main part of his work was stopping air leaks and steam-heat leaks, and putting brake shoes on cars; that on other days he worked on the repair track, repairing cars and making necessary replacements, and in the yards and at the Union Station in St. Louis doing similar work.

The plaintiff's evidence relative to what occurred on December 29, 1950, was that he went out in the defendant's yards to Wabash No. 24, a train of six streamlined passenger cars, also known as the Blue Bird; that the six cars were coupled together with their air brakes set and were on Track No. 9, which runs east and west and slopes "quite a bit" toward the east; that he put blocks under the wheels of the cars to keep them from rolling when the brakes were released; that the brakes are released in repairing the train; that the blocks are made of crossties and are about ten or twelve inches long; that they are laid crossways over the rail and under the wheels; that generally one block is laid under the rear wheel of each car on one side of the train; that he found that all of the steam, air, and signal lines of the train were connected except between the last two cars at the east end of the train; that the last car was an observation car, No. 1601, and the car next to it a diner, car No. 51; that the air hose connection of the diner had ice all over it; that the coating of ice was "a whole lot bigger" than the head of the air hose coupling; that in coupling up the air hose he beat the ice off of it and then made the coupling; that he also coupled up the steam-heat hose and the signal line between the two cars; that after doing that he connected a steam line located in the yard near the west or head end of the train to the steam line of the train at that end, and connected the air line of the train with the compressed air line in the yard at the rear or east end of the train; that there were two compressed air lines in the yard, a high pressure line and a low pressure line; that the low pressure line was broken down and could not be used; that the pressure in the high pressure line was around 180 pounds; that after putting on the air the plaintiff started to go around the train; that he found a steam heat leak between cars Nos. 1601 and 51, the two rear cars of the train; that "the steam had blown plumb out through the top of the train" by the time he got there; that he tapped on the steam heat coupling with his hammer to close the leak; that there was so much steam blowing out that he was unable to tell whether or not...