Barnett v. Terminal Railroad Association of St. Louis, 15413.

• Decision Date: 02 March 1956
• Docket Number: No. 15413.,15413.
• Parties: Ferriel M. BARNETT, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

228 F.2d 756 (1956)

Ferriel M. BARNETT, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellee.

No. 15413.

United States Court of Appeals Eighth Circuit.

January 17, 1956.

Rehearing Denied March 2, 1956.

Robert W. Gilcrest, St. Louis, Mo. (Haley, Fredrickson & Caruthers, St. Louis, Mo., were with him on the brief), for appellant.

Wayne Ely, St. Louis, Mo., for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by appellant to recover damages for injuries suffered by him while in the employ of appellee. We shall refer to appellant as plaintiff and to appellee as defendant. The defendant is a railway corporation operating as a common carrier in interstate commerce and at all times pertinent to this action was the owner and operator of the terminal facilities at St. Louis, Missouri, for all common carriers operating into, through or out of that city.

At the time of receiving his injuries plaintiff was employed by the defendant as a car inspector and repairman in its railroad yards at St. Louis, Missouri. The case has been tried three times. On the third and last trial plaintiff filed an amended complaint which in substance charged as acts of negligence as the basis for recovery that on December 29, 1950 plaintiff was engaged in the course of his employment by defendant in inspecting brake shoes and making an air test on passenger cars of the Wabash Railroad Company which other employees of the defendant had previously placed in the coach yard and were subsequently to remove and that the defendant negligently allowed and permitted the air brake hose and the steam pipe on each of two of said cars to remain uncoupled and in a position where steam was escaping from the steam pipe between the cars at a time when the weather was below freezing and as a direct result of such negligence ice formed in and upon the couplers of the air hose and wholly or partly as a result thereof plaintiff was unable to make a secure coupling of the air hose by reason of the existence of ice in and on such coupling so that they burst apart, struck and injured plaintiff. This complaint was an amended and substituted complaint in that it did not by reference or otherwise embody the allegations of the complaint as originally filed. The defendant by its answer denied each and every allegation of the amended complaint except as admitted and it admitted the jurisdictional allegations, admitted that at the time of receiving his injuries plaintiff was in its employ as a car repairman but denied that it was guilty of any negligence and affirmatively pleaded that whatever injuries plaintiff sustained on the occasion mentioned in his amended complaint resulted solely from or were caused by plaintiff's own negligence.

At the time of the accident resulting in plaintiff's injuries plaintiff was an experienced machinist having been employed by the St. Louis-San Francisco Railway Company for thirty years and by the defendant for some eighteen months. On the day of the accident he began working at 12:30 a. m. His first job was to replace worn brake shoes and to make minor repairs on the Wabash Blue Bird passenger train and check the equipment for air and steam leaks. This Blue Bird train when it arrived in the yards at St. Louis was carrying an extra car between the dining car and the observation car. Prior to the time plaintiff inspected the train this extra car had been cut out and the cars had been recoupled. The hose connecting the air brake line and the hose connecting the steam line had, however, not been connected and there was escaping steam from the disconnected end of the steam line hose. The temperature stood at about twenty degrees above zero and there was ice accumulated on the coupling heads of each of these disconnected hose. Plaintiff in discharge of his duty as a car inspector and repairman entered between the cars where the hose were disconnected and exposed and with his hammer knocked the ice off the head of each of these exposed hose and connected each with the hose of the car immediately ahead of it. After connecting the steam hose and air brake hose between the two cars he proceeded westwardly along the train blocking each car as he went and when he arrived at the westernmost end or the head end of the train he hooked the steam line from the yard to the train so that the whole train would have steam on it. He then went to the easternmost or rear end of the train blocking cars as he went and hooked the air brake hose of the train to the air line in the yards and turned on 110 pounds of air pressure. He then returned to the space between the dining and observation car and observed a leak in the steam hose connection between these two cars. While he was attempting to tighten the steam line coupling which was leaking the air brake hose connection separated striking him on the knee.

The facts will be further developed in the course of this opinion. At the close of all the evidence defendant moved for a directed verdict on the following grounds: (1) That the evidence was not sufficient to sustain any allegation of plaintiff's complaint against defendant; (2) That the evidence fails to establish any violation of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq.; (3) That the evidence fails to establish that the air hose coupling came apart by reason of any negligence on the part of defendant; (4) That the evidence proves that the air hose coupling came apart solely by reason of plaintiff's negligence; and (5) That the evidence proves that plaintiff failed to put the air hose coupling together properly and securely and that he knocked it apart with a hammer. The court deferred passing on the motion for a directed verdict and sent the case to the jury. The instructions are not to be found in the record before us and, hence, will be assumed to be correct in every respect. The jury failed to agree and was in due course discharged. Thereafter defendant made a motion for judgment in accordance with its motion for directed verdict. The court granted defendant's motion and entered judgment dismissing plaintiff's complaint on its merits and from the judgment so entered plaintiff prosecutes this appeal seeking reversal on substantially the following grounds: (1) The court erred in directing a verdict for the defendant and entering judgment for the defendant and dismissing plaintiff's complaint upon its merits. There was substantial evidence to support the hypothesis that defendant negligently set cars in its yards in cold weather with the air and steam lines disconnected so that ice formed on the air brake hose coupling causing it to burst apart and injure the plaintiff; and (2) The court erroneously excluded from the case certain evidence adduced by plaintiff and establishing that ice in the locking mechanism of the air brake hose would cause it to burst apart under pressure.

We shall first consider the action of the court in withdrawing from the jury's consideration a piece of hose and testimony with reference thereto, the hose not having been introduced in evidence. In the course of the trial plaintiff called one McCauley as a witness who testified with reference to the two pieces of hose that had been introduced in evidence. He testified with reference to these hose, using them by way of illustration, that the hose was in two parts, each part being equipped with a "head", with a "lip" on one head and a groove on the other and the coupler of the hose was locked together by fitting the lip into the groove. Plaintiff's counsel marked the lip and groove of the coupler with chalk and the witness put them together and explained to the jury that the locking of the coupler by fitting the lip into the groove would prevent the heads from pulling apart on lateral movement and further testified that if the coupler "was wore to the point that there was no tongue-and-groove left, or if the head of the hose is spread apart in some way, then it would pull apart." After having been excused the witness was recalled as plaintiff's last witness. When recalled counsel for plaintiff produced a piece of hose similar in appearance to the two pieces of hose that had been introduced in evidence and interrogated the witness with reference thereto. He did not announce to the court nor to opposing counsel that the hose so produced was not one of the pieces of hose already admitted in evidence. Ordinarily the only testimony admissible with reference to this piece of hose would have been testimony for the purpose of laying a foundation for its admission in evidence. It is elementary that a witness may not be interrogated with reference to a physical exhibit which has not been admitted in evidence and it is perfectly manifest on the record that neither the court nor opposing counsel knew that this so-called exhibit had not been previously admitted in evidence. This physical exhibit though entirely foreign to the record was exhibited to the witness and to the jury and it was shown that there was in the groove an obstruction...