Chicago Great Western Railway Company v. Casura
| Decision Date | 07 June 1956 |
| Docket Number | 15528.,No. 15484,15484 |
| Citation | 234 F.2d 441 |
| Parties | CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant, v. Walter R. CASURA and Swift & Company, Appellees. SWIFT & COMPANY, Appellant, v. Walter R. CASURA and Chicago Great Western Railway Company, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Vance B. Grannis, So. St. Paul, Minn. (Grannis & Grannis, So. St. Paul, Minn., on the brief), for Chicago Great Western Ry. Co.
Ira C. Peterson, Jr., Minneapolis, Minn. (Freeman, Peterson, Hoppe & Gaughan, Minneapolis, Minn., on the brief), for Swift & Co.
James H. Geraghty, St. Paul, Minn. (James H. Mulally and Sanborn, Jackson & Rice, St. Paul, Minn., on the brief), for Walter R. Casura.
Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.
At all times pertinent to the issues here involved Swift & Company owned, maintained and operated an extensive meat packing plant at South St. Paul, Minnesota. Appurtenant to and, in effect, a part of this establishment, there were many railway spur tracks and switching tracks.
At and for many years prior to January 14, 1954, the Chicago Great Western Railway Company had performed all the railway switching service at this plant and in the adjacent stockyards industrial area at South St. Paul.
As a part of its plant at South St. Paul, Swift & Company has a building which is variously referred to in the record as a power house, ice house or freezer house. This building is served by a railway spur track which leads into the building from the north. This spur track runs in a general northerly and southerly direction. At a point approximately fifty or sixty feet north of the north end of this building the spur track is traversed at right angles by a cattle runway varying in width from fourteen to nineteen feet. By means of this runway cattle are driven from pens to the west to a ramp leading to the killing floor in the packing plant. This cattle runway is enclosed on either side by a board fence. To enable the train equipment to switch cars into and out of the ice house, gateways are cut through the enclosed runway and gates have been installed. When the runway is in use these gates are closed, forming a part of the runway enclosure, but when cars are to be switched into or out of the ice house these gates are opened so as to clear the spur track. There are two parts to each of these gates and they are referred to in the record as the southwest gate, the southeast gate, the northwest gate and the northeast gate. These gates are on hinges and open out from the runway. The runway across the tracks and the ground around the gates were paved with concrete. To hold the gates in place when open or shut there were iron bars on each gate to be dropped down to the concrete. There were no holes in the concrete into which these bars could be pushed. The lower end of the bars simply rested on the concrete pavement. These gates, as well as all the real estate under and around the spur track in question, were wholly owned and exclusively maintained and operated by Swift and Company. Whenever any switching was done over this spur track Swift & Company employees always opened and closed the gates, as well as the door to the ice house.
Walter R. Casura, appellee herein, who was plaintiff below, had been in the employ of the Chicago Great Western Railway Company for more than thirty-five years and during the twenty-five years immediately prior to January 14, 1954, had been employed as a switch foreman and on the date here in question he was so employed. Pursuant to his duties as switch foreman he went with his switching crew to the office of the Swift & Company yardmaster and was advised that there were four empty tank cars in the ice house which Swift & Company desired removed, and two loaded cars to be moved into the ice house in place of the empties to be removed. To enable this switching movement to be made the Swift & Company yardmaster, a Mr. Johnson, opened the gates as was his custom and duty. The switching crew coupled the two loaded cars ahead of the engine and pushed them ahead of the engine south toward the ice house, passing through the open gateways. Mr. Casura walked along the cars as they were being pushed into the ice house, stepped inside the building and saw that the coupling was made between the full tank cars and the empty cars in the building. He then gave the signal for the six cars to be pulled out and walked in a northerly direction along the track on the west side of the cars which were being pulled out. After he passed the southwest gate onto the runway a moving car came in contact with the southwest gate, splintering it, and part of the wrecked gate struck him on the right hand side of the body just above the hip, inflicting serious injuries.
Walter R. Casura brought this action against both the Chicago Great Western Railway Company and Swift & Company to recover damages for his injuries, alleging that his injuries were caused by "* * * the negligence of defendants and each of them, in negligently placing across said track a gate that was defective and unsafe, and in negligently failing to provide a good and sufficient fastening for said gate when it was opened to allow cars to pass through and in negligently failing to inspect said gate, and on the part of defendant, Chicago Great Western Railway Company, in negligently pulling said cars along said track and through said gates at an unsafe and negligent rate of speed and in negligently failing to furnish plaintiff a safe place to work." Each of the defendants answered separately. The Chicago Great Western Railway Company denied all allegations of negligence and affirmatively pleaded that the accident was caused solely by the negligence of plaintiff or by the combined negligence of plaintiff and Swift & Company. Swift & Company, in its answer, denied all allegations of negligence and affirmatively pleaded contributory negligence on behalf of plaintiff. Cross claims were also filed by the Chicago Great Western Railway Company against Swift & Company and it was alleged that Swift & Company was liable to indemnify the Chicago Great Western Railway Company for any and all damages which may have been sustained by plaintiff and which might be awarded him against the Chicago Great Western Railway Company. Swift & Company filed a cross claim charging that plaintiff's injuries were caused solely by the negligence of the Chicago Great Western Railway Company and it was alleged that the Chicago Great Western Railway Company was liable to Swift & Company for indemnity or contribution, as the case might be, for all damages which might have been sustained by plaintiff and which might be awarded plaintiff against defendant Swift & Company.
On the various issues thus joined the action was tried to a court and a jury. At the close of all the evidence each of the defendants moved for a directed verdict. The motion of defendant Chicago Great Western Railway Company was based upon the alleged insufficiency of the evidence to prove negligence on its part which caused, in whole or in part, plaintiff's injuries, and upon the further ground that:
"* * * the evidence conclusively shows that the gate in question was under the exclusive control in every respect of the defendant Swift & Company and that the defendant Chicago Great Western Company neither had any notice nor is there any evidence from which the jury could find they should have had any notice or knowledge of any defective condition of the gate in question."
The court reserved ruling on these motions and the case was submitted to the jury on instructions to which as given no exceptions were saved. The Chicago Great Western Railway Company in its motion for judgment notwithstanding the verdict alleged:
In their motions for judgment notwithstanding the verdict both the Chicago Great Western Railway Company and Swift & Company charged that the court erred in refusing requested instructions on the question of contributory negligence, but the record fails to disclose that any objections or exceptions were saved to such refusal. The jury returned a verdict in favor of plaintiff and against both defendants on all the issues and assessed his damages at $38,000.
Defendant Chicago Great Western Railway Company seeks reversal on substantially the following grounds: (1) there was no evidence of any negligence of the railway company which was the proximate cause of plaintiff's injuries; (2) the negligence of Swift & Company was the primary cause of plaintiff's injuries; (3) the trial court erred in refusing to allow defendant railway company sufficient time to call as its witness Dr. Donovan McCain; (4) the trial court erred in refusing to submit the issue of plaintiff's contributory negligence to the jury; (5) the verdict is excessive and is the result of passion and prejudice; (6) defendant railway company was deprived of a fair trial because of the misconduct of counsel in his closing argument to the jury. Swift & Company charges error in that (1) the evidence does not sustain the verdict against Swift & Company; (2) the railway company is not entitled to indemnity against Swift & Company; (3) Swift & Company is entitled to a new trial because of the court's refusal to submit the question of plaintiff's contributory negligence to the jury and because the verdict is excessive and appears to have been rendered by the jury while...
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