Beissel v. Pittsburgh and Lake Erie R. Co.

• Decision Date: 15 September 1986
• Docket Number: No. 85-3728,85-3728
• Citation: 801 F.2d 143
• Parties: Donald E. BEISSEL, Appellant, v. The PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, a corporation.
• Court: U.S. Court of Appeals — Third Circuit

Page 143

801 F.2d 143

Donald E. BEISSEL, Appellant, v. The PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, a corporation.

No. 85-3728.

United States Court of Appeals, Third Circuit.

Argued June 18, 1986.

Decided Sept. 15, 1986.

Paul L. Hammer (argued), Pittsburgh, Pa., for appellant.

Richard D. Klaber (argued), Pittsburgh, Pa., for appellee.

Before SEITZ, HUNTER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The plaintiff appeals from a jury verdict in favor of the defendant in this case filed pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60. The plaintiff, who allegedly suffered injuries in the course of his employment, challenges the trial court's refusal to submit to the jury a separate claim pursuant to the Safety Appliance Acts, 45 U.S.C. Secs. 1-16, its refusal to instruct the jury on the doctrine of res ipsa loquitur, and its refusal to prohibit the testimony of a "surprise witness".

We find that the district court did not err in its rulings on the res ipsa loquitur charge or the testimony of the "surprise witness." We hold, however, that the district court did err when it refused to submit the Safety Appliance Acts claim to the jury. Accordingly, we will affirm the entry of judgment in favor of the defendant on the negligence claim but will remand the case for a new trial on the Safety Appliance Acts claim.

I.

The plaintiff allegedly sustained back injuries in the course of his employment when he slipped on the step of the defendant's 1969 Dodge van. The van had been converted for use on both the highway and on the rails. This conversion included the additions of extra wheels designed to fit on railroad tracks and of footboards or sill steps.

At the time of the accident, the plaintiff and Warren Mayfield, both employees of the defendant, were assigned to transport the high/rail vehicle by highway from Glassport to McKees Rocks, Pennsylvania. The two men had stopped at a convenience store and were returning to the van with coffee when the plaintiff was injured.

Mr. Mayfield testified that, at the time of the accident, he was not looking at the plaintiff but was concentrating instead on his efforts to tear a hole in the lid of his coffee cup. The plaintiff testified that, having placed his cup of coffee on the shelf inside the van, he put his right foot on the sill step and his left foot on the step of the van. The plaintiff claims that the sill step then gave way and that he was injured in the resulting fall.

The plaintiff filed suit against the defendant pursuant to the FELA, alleging negligence and a violation of the Safety Appliance Acts. The trial judge refused to submit the Safety Appliance Acts claim to the jury, charging only on the negligence claim. The jury returned a verdict in favor of the defendant. The trial court denied the plaintiff's subsequent motions for a new trial and for judgment notwithstanding the verdict.

The plaintiff appeals alleging that the district court erred in refusing to send the plaintiff's Safety Appliance Acts claim to the jury, that the court improperly refused to charge the jury on the doctrine of res ipsa loquitur, and that the court erred in permitting a "surprise witness" to give prejudicial and irrelevant testimony.

II.

The trial court refused to submit to the jury the plaintiff's claim that the defendant should be found liable for the plaintiff's injuries because those injuries resulted from a violation of the Safety Appliance Acts ("Acts"). The plaintiff contends that the defendant violated a regulation issued pursuant to Section 11 of the Acts, 49 C.F.R. Sec. 231.25(c), when it permitted its employees to use the multi-purpose vehicle equipped with a sill step which allegedly was not securely fastened.

The defendant does not contest the plaintiff's assertion that the record contains sufficient evidence to support a determination that the step was loose. The defendant argues instead that the Safety Appliance Acts were not applicable to the vehicle because the van was not on a railroad track at the time of the incident.

The Safety Appliance Acts impose an absolute duty on railroad carriers to maintain the required safety equipment on their vehicles. See Lilly v. Grand Trunk Western Railroad Company, 317 U.S. 481, 485-86, 63 S.Ct. 347, 350-51, 87 L.Ed. 411 (1943). An employee who is injured by reason of a violation of the Acts may pursue a cause of action against the carrier pursuant to the FELA. Id. at 485, 63 S.Ct. at 350. In short, the Safety Appliance Acts provide the basis for the claim, and the FELA provides the remedy. T.J. Lewis, Jr., Federal Employers Liability Act, 14 S.C.L.Q. 447, 452 (1962).

If the Acts were applicable to the multi-purpose vehicle at the time of the incident, the trial court erred in refusing to charge the jury on the Safety Appliance Acts claim. The standard of proof required of a plaintiff alleging a Safety Appliance Acts claim is less stringent than for an FELA negligence claim. Thus, irrespective of our resolution of the negligence claim, an error in the court's refusal to submit the Safety Appliance Acts question to the jury would require a remand for a new trial on that portion of the complaint.

Section 11 of the Acts provides, in relevant part:

It shall be unlawful for any common carrier subject to the provisions of sections 11 to 16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in said sections, to wit: All cars must be equipped with secure sill steps....

45 U.S.C. Sec. 11 (emphasis added). Section 12 of the Acts gives the Secretary of Transportation authority to issue appropriate regulations and provides that "it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard so prescribed by the Secretary." 45 U.S.C. Sec. 12.

Prior to the 1957 decision of the Supreme Court of the United States in Baltimore & Ohio Railway Company v. Jackson, the Interstate Commerce Commission ¹ ("ICC") did not consider "track motor cars," a category which includes high/rail vehicles, to be subject to the provisions of the Safety Appliance Acts. 353 U.S. 325, 330, 77 S.Ct. 842, 845, 1 L.Ed.2d 862 (1957) ("Jackson"); Applicability of Safety Regulations to Track Motor Cars and Push Trucks, 325 I.C.C. 722, 724 (1965). In Jackson, the Supreme Court held that a track motor car and the hand car to which it was coupled were within the scope of the Safety Appliance Acts:

The power or train brake provisions of the Safety Appliance Acts apply to the motor track car and the coupling and brake requirements to the hand car when they are employed in the manner here involved [the motor track car was hauling the hand car on the defendant's railroad track].

Jackson, 353 U.S. at 328, 77 S.Ct. at 844.

The Jackson Court did not decide, however, whether similar track motor cars or hand cars, if used separately, were governed by those sections of the Acts. The Court explained: "If used separately, though we do not pass on the question, it may well be that entirely different sections of the Acts might apply to each of the vehicles." Id.

The ICC, in response to the Jackson decision, instituted rulemaking proceedings for the purpose of promulgating regulations consistent with the Court's interpretation of the Safety Appliance Acts. Applicability of Safety Regulations to Track Motor Cars and Push Trucks, 325 I.C.C. 722, 722 (1966). These proceedings culminated in the promulgation of 49 C.F.R. Secs. 231.25 & 231.26. The portions of the regulations which are pertinent to this appeal specify:

Sec. 231.25 Track Motorcars (self-propelled 4-wheel cars which can be removed from the rails by men).

....

(c) Sill steps or footboards. Each track motorcar shall be equipped with safe and suitable sill steps or footboards conveniently located and securely fastened to car when bed or deck of track motorcar is more than 24 inches above top of rail.

A "note" which follows Section 231.26 provides: "Sections 231.25 and 231.26 are applicable only when the vehicles governed thereby are coupled together and moved together."

The apparent intent of the ICC was to limit the scope of the regulations. Thus, because the Jackson Court expressly declined to consider whether track motor cars which are operated separately are governed by the Acts, the Commission did not address such operation of track motor cars in its rulemaking proceeding and specifically included the note limiting the regulations to cars coupled and moved together. Similarly, although it conceded that the term track motor car encompasses high/rail vehicles among others, the Commission directed its regulations to a more limited group of cars, i.e., "self-propelled 4-wheel cars which can be removed from the rails by men." See Applicability of Safety Regulations to Track Motor Cars and Push Trucks, 325 I.C.C. 722, 724-25 (1965); cf. Applicability of Safety Regulations to Track Motor Cars and Push Trucks, Report & Order of Hearing Examiner, I.C.C. docket No. 32248, at 4 (February 10, 1965) (Vinskey, Henry J.) ("Although there are other self-propelled maintenance-of-way vehicles which are comparable to or related to track motor cars, such as rail highway automobiles and trucks, weed burners, cranes and others, they are not within the scope of this proceeding.").

The ICC did indicate, however, that vehicles which do not fall precisely within the scope of 49 C.F.R. Sec. 231.25 may nonetheless be subject to the provisions of the Acts. With respect to the vehicles not covered by the Jackson-initiated rulemaking, the Commission's hearing examiner wrote: "[A]ttention is called to Section 131.18 [now 231.18] of the United States Safety Appliance Standards which applies to cars of special construction not specifically covered by the standards." Applicability of Safety Regulations to Track...