Byler v. Wabash R. Co., No. 14382.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, , and WOODROUGH and THOMAS, Circuit
• Citation: 196 F.2d 9
• Parties: BYLER v. WABASH R. CO.
• Docket Number: No. 14382.
• Decision Date: 23 May 1952

196 F.2d 9 (1952)

BYLER
v.
WABASH R. CO.

No. 14382.

United States Court of Appeals, Eighth Circuit.

May 1, 1952.

Rehearing Denied May 23, 1952.

196 F.2d 10

Fred J. Freel and Robert L. Robertson, Kansas City, Mo., for appellant.

David R. Hardy, Kansas City, Mo. (J. H. Miller, St. Louis, Mo., John S. Marley, Sam B. Sebree and Sebree, Shook, Hardy & Hunter, Kansas City, Mo., on the brief), for appellee.

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

GARDNER, Chief Judge.

This action was brought by appellant Gordon Byler against Appellee Wabash Railroad Company under Section 11, Title 45 U.S.C.A., to recover damages for personal injuries. The parties will be referred to as they appeared in the trial court.

Plaintiff alleged, so far as here material, that at and prior to August 17, 1949, he was in the employ of the defendant as a switchman, and that at the time in the complaint mentioned he and the defendant were engaged in interstate transportation, the defendant being a railroad common carrier; that as a part of his duties he boarded one of defendant's moving cars for the purpose of setting the hand brakes thereon in order to retard the speed of said car or bring it to a stop in the course of a switching movement then in process in defendant's yards in Kansas City, Missouri; that upon proper application of the hand brakes in the course of his attempt to slow down or stop the moving cars the brakes failed to function properly; that the brakes were not efficient brakes and although properly manipulated failed to impede the speed of the moving cars, with the result that a violent collision occurred between said moving cars and other cars standing stationary on the track; that by reason of defendant's violation of the Safety Appliance Act he was caused to suffer severe personal injuries.

Defendant's answer admitted its corporate existence and that it was at the time in the complaint alleged a railroad common carrier. It denied generally all other allegations in the complaint. It then pleaded affirmatively that if it was negligent in any of the respects charged in plaintiff's complaint whatever damage plaintiff sustained was due to "plaintiff's negligence which caused or contributed thereto in that although plaintiff saw and knew or by the exercise of ordinary care could have seen and known of the conditions then and there existing, of the speed of said moving cars and of the stationary cars standing in their path and of the length of time necessary to board said car and effectively apply the brakes, he failed to exercise ordinary care for his safety in boarding said car referred to in his amended complaint, when he knew or in the exercise of ordinary care should have known that said moving and stationary cars would come into collision before said moving cars could be stopped."

So far as the issues presented on this appeal are concerned, there is no serious dispute in the evidence and the sufficiency of the evidence is not questioned. Plaintiff at the time of receiving his injuries was employed by defendant as a switchman in defendant's yards at Kansas City, Missouri. He was standing between a string of twelve to fourteen cars to the west of him and a string of three cars attached to the switch engine to the east of him. The three cars were cut off from the engine and permitted to run down grade toward the standing cars. As these three cars passed plaintiff he boarded the stirrup on the ladder at the east end of the east car to climb to the brake platform and apply

196 F.2d 11

the brakes because he believed the moving cars were gaining speed too fast and that if not checked they would be going too fast to make a safe coupling. When plaintiff reached the brake platform and applied the hand brake tightly in the usual manner the brake lever slipped on the first application and then he made a second application but the brake failed to slow or stop the moving cars. As the cars collided the impact was such as to throw him from the box car he was on to the ground. There was evidence from which the jury might have found that had the brake functioned properly the speed of the moving cars would have been slowed down before they collided with the standing cars

The action was tried before a jury and resulted in a verdict for defendant, and from the judgment entered on the verdict plaintiff prosecutes this appeal. As has been observed, the sufficiency of the evidence is not challenged but plaintiff seeks reversal on the ground that the court erred in admitting certain testimony over his objections and that the court likewise erred in refusing to give certain instructions requested by him and in the giving of certain instructions on its own motion.

The Safety Appliance Act, under which this action was brought, provides among other things that, "It shall be unlawful for any common carrier subject to the provisions of sections 1-16 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 sections 11-16 of this title, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; * * *."

Where liability for injury on the part of a common carrier engaged in interstate commerce...