Chicago Great Western Ry. Co. v. Peeler

• Decision Date: 22 March 1944
• Docket Number: No. 12730.,12730.
• Parties: CHICAGO GREAT WESTERN RY. CO. v. PEELER.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.2d 865 (1944)

CHICAGO GREAT WESTERN RY. CO. v. PEELER.

No. 12730.

Circuit Court of Appeals, Eighth Circuit.

March 1, 1944.

Rehearing Denied March 22, 1944.

Harry S. Stearns, of St. Paul, Minn. (Harry S. Stearns, Jr., of St. Paul, Minn., on the brief), for appellant.

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

The appellee as plaintiff brought this action against the appellant to recover damages for personal injuries sustained in an accident while employed by appellant as a switchman in appellant's yards at Des Moines, Iowa. The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

After stating jurisdictional facts the complaint alleged that the injury for which recovery of damages was sought resulted from the negligence of the appellant in allowing a portion of a plank at a street crossing to protrude above the surface of the ground and over which appellee tripped and fell against a moving locomotive while in the performance of his duties. The answer denied negligence and alleged contributory negligence and assumption of risk. It is admitted that both appellant and appellee were engaged in interstate transportation and commerce at the time the accident occurred. The jury returned a verdict in favor of the appellee for $40,000 upon which the judgment appealed from was entered.

Reversal is sought on the grounds (1) that there was no substantial evidence of negligence or proximate cause; (2) that the court erred in refusing to allow defendant's offer of proof that plaintiff was at the time of the trial receiving a pension under the Railroad Retirement Act of 1937, 45 U.S.C.A. § 228a et seq.; and (3) that the court erred in refusing to instruct the jury that plaintiff assumed the risk.

The question of the sufficiency of the evidence to support a finding of negligence is presented here on a record which shows a motion for a directed verdict at the conclusion of the evidence and its denial by the trial court. In determining this question, since the jury found for the plaintiff, we are bound to resolve all conflicts in the evidence against the defendant, and the plaintiff is entitled to the benefit of such favorable inferences as the jury might reasonably have drawn therefrom. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F. 2d 971, 973. Applying this rule, the evidence discloses that Peeler, on the date of the accident, February 25, 1942, while employed as a switchman by the defendant, was engaged in assisting in the movement of cars in the Des Moines yards. The accident occurred at about 11:15 a. m. at a crossing known as the Diagonal Street crossing. The street at that point runs approximately north and south, and the railroad tracks cross it from east to west. The purpose of the operation was to transfer six freight cars coupled to the front of a locomotive from a point on the load track about 1600 feet west of the crossing to the stock track, the junction of the two tracks being about 20 feet west of the crossing. Peeler's duty was to throw the stock track switch at the junction point of the two tracks after the train had moved eastward past the switch to permit the train then to move westward on the stock track.

On the morning of the accident the crossing over the tracks was icy and slippery. A ditch had been constructed under the tracks at the switch for the purpose of draining the switch. The crossing was maintained by the appellant and consisted of planks three or four inches thick resting on top of the ties and covered with earth, sand, or cinders. At the west side of the crossing the end of one of the planks protruded above the level of the ground about 2½ or 3 inches. At such crossings it was customary to bevel the end of the plank or to cover it with earth or cinders. The condition described had existed a long time, although it could easily have been remedied.

Peeler was riding in the cab of the locomotive with the engineer and fireman as it backed up moving in an easterly direction pulling the six cars. The train was moving four or five miles an hour. Peeler testified that as the locomotive approached the switch he stood in the gangway on the bottom step with his back to the outside, waited until he crossed the ditch at the switch and the rough ties there and got off at the smoothest place available about four or five feet from the crossing. He then took a "couple of steps" and tripped on the end of the protruding plank, was thrown on the crossing on the ice, slipped and fell into the side of the engine, and received serious injuries which are unnecessary to describe.

The court charged the jury that under the Federal Employers' Liability Act it was the duty of appellant to provide a reasonably safe place for the plaintiff to perform his duties as a switchman, and limited the basis of recovery to the alleged negligent failure to bevel or fill around the end of the plank on which plaintiff tripped.

Section 1 of the Act, 45 U.S.C.A. § 51, makes the railroad liable to its employees for injuries "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * track, roadbed, works * * * or other equipment." Under this section there is no liability in the absence of negligence on the part of the railroad. New York Central R. R. Co. v. Winfield, 244 U.S. 147, 150, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A.1918C, 439, Ann.Cas.1917D, 1139.

The section foreman testified that his duty was to maintain the tracks at the point of the accident and that the plank on which Peeler tripped had been in place for a long time; that he beveled the ends of planks at some of the crossings in Des Moines but not at that particular crossing; and that the purpose of beveling the ends of the crossing planks is to protect anything dragging under the locomotive so that it would not tear the plank out. Another witness testified that it was the general pracice to bevel the ends of planks at all crossings in railroad yards; that the particular plank on which Peeler tripped had been sticking up for at least a month before the accident. It was also shown that switchmen in the performance of their duties were required to dismount from moving freight trains and walk along the tracks beside moving trains at this point.

Upon this evidence the jury was warranted in finding that the protruding end of the plank was a defect in appellant's "works"; that such defect was due to appellant's negligence; and that Peeler's injury resulted from such negligence. Compare Thomson v. Boles, 8 Cir., 123 F.2d 487, certiorari denied 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1204; McCarthy v. Palmer, 2 Cir., 113 P.2d 721; Lock v. Chicago, B. & Q. R. Co., 281 Mo. 532, 219 S.W. 919.

Appellant contends that it owed no duty to Peeler to remedy the defect in the end of the plank on which he tripped because such defect did not interfere with the operation of trains, citing Nelson v. Southern Ry. Co., 246 U.S. 253, 38 S.Ct. 233, 62 L.Ed. 699; Missouri Pac. R. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351, and other cases. The cases are not in point. A defect which hinders a switchman in the performance of his duties does "impair safety in operation." In the Nelson case, supra, the plaintiff was a civil engineer makng a survey in the yards at the time he was injured by a defect in a tie. In the Aeby case the plaintiff, a station agent, was injured by stepping on ice recently formed in a depression on the platform. The Court observed that plaintiff knew that it had rained and the place was covered with ice and snow; that her knowledge of the danger was equal to that of the company; and that she voluntarily took the risk of known conditions. Under these circumstances the court held that the carrier was not negligent. The case was decided before the adoption of the amendment of 1939 to the Federal Employers' Liability Act (hereinafter discussed) abolishing assumption of risk as a defense in cases brought under that Act, and the decision is clearly predicated upon that doctrine. The decision is not controlling in this case.

Again, the appellant argues that it owed no duty to Peeler to maintain the crossing because its duty in that regard extended solely to the public. The argument has no application to the issue. Peeler's action is not based upon any alleged defect in the crossing, but upon failure to bevel or cover the end of the plank. Under the state law the company's duty to the public to maintain the crossing is different and distinct from its duty under the Act to a switchman.

Appellant argues further that the verdict is based, not on evidence, but upon speculation and conjecture. This contention is based in part upon the testimony of the engineer that Peeler got off the locomotive in the middle of the crossing. This testimony was directly contrary to the testimony of Peeler, which the jury was at liberty to believe. Illinois Central R. Co. v. Skaggs, 240 U.S. 66, 68, 36 S.Ct. 249, 60 L.Ed. 528. The evidence is abundantly sufficient to support the finding that appellant's negligence was the proximate cause of Peeler's...