CHICAGO, M., ST. P. & PRR CO. v. Linehan

Decision Date28 August 1933
Docket NumberNo. 9698.,9698.
Citation66 F.2d 373
PartiesCHICAGO, M., ST. P. & P. R. R. CO. v. LINEHAN.
CourtU.S. Court of Appeals — Eighth Circuit

C. O. Newcomb, of Minneapolis, Minn. (F. W. Root and A. C. Erdall, both of Minneapolis, Minn., on the brief), for appellant.

Robert J. McDonald, of Minneapolis, Minn., for appellee.

Before KENYON and GARDNER, Circuit Judges, and DEWEY, District Judge.

KENYON, Circuit Judge.

Parties will be designated as in the trial court, where appellee was plaintiff and appellant defendant.

Plaintiff was foreman of defendant's switching crew in the yards of the company at New Lisbon, Wis. He claims to have suffered injury while engaged in the performance of his duties by reason of the fact that certain freight car couplers did not couple automatically upon impact, requiring him to go between the cars to assist in making the coupling. His hand was caught in the coupler, resulting in a crushing of his hand and arm, necessitating the amputation of his right arm near the elbow. This suit was based upon alleged negligence of defendant in not furnishing proper couplers under the Safety Appliance Act and also negligence in the operation of the engine and cars. The latter charge was abandoned during the trial of the case.

At the close of the evidence defendant moved for an instructed verdict on the grounds, that plaintiff had failed to prove any defect in the couplers, that the evidence disclosed they were entirely operative, were capable of being coupled upon impact and uncoupled without the necessity of any one going between the cars, that plaintiff's act in going between the cars under the circumstances and conditions was the proximate cause of his injury.

The court overruled the motion and submitted the case to the jury, which returned a verdict for plaintiff for $13,500, for which judgment was duly entered. It should have sustained the motion if the testimony and inferences justifiably to be drawn therefrom furnished no substantial basis upon which a jury could find a verdict for plaintiff. Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041.

In considering the motion to instruct a verdict it was the court's duty to ascribe to the evidence introduced by plaintiff, and the inferences to be drawn therefrom, the most favorable aspect the same would warrant. Waddell v. A. Guthrie & Co. (C. C. A. 10) 45 F.(2d) 977; South Carolina Asparagus G. Ass'n v. Southern R. Co. (C. C. A. 4) 46 F. (2d) 452; Engstrom v. De Witt (C. C. A. 8) 58 F.(2d) 137.

Was there such substantial evidence on the question of the condition of the coupler as to justify submitting the case to the jury?

Plaintiff testified at length. This testimony tends to show the following: Plaintiff had been employed by the defendant for some thirty years on its Wisconsin Valley division. The first four years he was a brakeman. Then he was promoted to passenger and freight conductor, and did some braking. He had worked subsequent to February 15, 1929, in the New Lisbon yards as switch foreman. At the time of the accident his hours of service were from 11 p. m. until 7 a. m. The switch crew, consisting of himself as foreman, the engineer, the fireman, and two switchmen, broke up passenger trains and freight trains in the yards and did the commercial switching therein. The switchmen and plaintiff performed coupling and uncoupling operations in the yard. Plaintiff would secure when he came to work at night a switch list, which was a list made up by the office force, showing the cars that were to be "spotted." The switching was done in accordance with the list, and plaintiff had general charge thereof as foreman of the crew. An engine was kept in the yards for the switching operations, and at night operations were by lantern signals.

At the trial, by plats and otherwise, the general situation of the New Lisbon yards was shown. It is unnecessary to go into particular detail concerning the arrangement of the tracks further than to say there was a track known as the Valley Main track, running east and west, and from this extending east up to the freight house was a house track which would hold about twelve 40-foot cars. The house track was the place of the accident. The passenger depot was east of the switch where the house track joined the Valley Main track. The night of the accident, May 8, 1932, after plaintiff had at 11 p. m. reported for work, he received at the passenger depot the messages and switching list having to do with the work of the crew that night. He then came out of the depot and was on the platform walking west when the yard engine with three cars of coal and a box car backing up toward the east on the Valley Main track went by him. He went back into the depot to find out about the box car, it not being on his list, and found it was a merchandise car for New Lisbon, which according to custom was to be placed on the house track about a car and a half west of the east end at a place called the "big space" or at the high platform at the extreme east end of the house track. When plaintiff came from the depot the second time he walked west, and at about the end of the depot platform the engine with the merchandise car alone passed him on the Valley Main track proceeding eastward toward the house track switch. One of the switchmen was on the rear board of the engine. Plaintiff gave no order to the switchman as to where to put the car. As to this he testified on cross-examination: "As the engine went by me I did not tell the switchmen on the footboard where to put the car they had ahold of. I figured they knew where that car would go, on the house track at least. They had worked the night before. I thought they knew from the night before. I had not worked Saturday nights for several months. We do not always set cars going to the house track at the high platform. I figured they were going to set it on the Valley Main. I saw them do that. I knew they were then going to go in and couple the house track. That is not regular routine work, just like handling those coal cars. The switchmen knew it was a car for the house because Olson was acting foreman the night before. I knew the boys would couple all the cars, pull them out, couple to the merchandise car and push it in and spot it at the high platform, because I was going to see that they did. They had to pull all of the cars off the house track to put that car on the rear. That was a common thing."

There were four cars on the house track which were not coupled together. The most westerly car on the house track was just clear of the Valley Main track switch. The next car was east about a car length. The third car was about 15 to 20 feet east of the second car, and the fourth about 20 feet east of the third. To place the merchandise car in the proper place on the house track east of the fourth car it was necessary to leave it on the Valley Main track, go in on the house track, get the four cars there, pull them out on the Valley Main track, back up and couple to the merchandise car, then proceed westward until the switch for the house track was cleared, then back the cars east on the house track to where merchandise cars billed for New Lisbon were customarily placed. This involved a number of couplings to be made between the cars on the house track. When plaintiff came from the depot the second time and walked west and the engine with the merchandise car passed him he went from the platform to the north side of the house track between the third and fourth cars standing on that track. The knuckle on the west end of the fourth car was closed. He opened this he states by using the pin lifter lever. On cross-examination he leaves the inference that he may have opened the knuckle by hand. He opened this knuckle because he knew in carrying out the general plan the engine would back in with the other cars and get this car. He states it was customary to have such knuckles open, so that, if there was to be a coupling, the car was on the track in the proper condition therefor. After opening this knuckle, he walked west on the north side of the house track to the west end of the third car. The engine was then on the west end of the house track coupling onto the first car. Switchman Olson, who seems to have acted as foreman when plaintiff was absent and who was known as the field man, was also on the north side of the track, which was the engineer's side. It was dark, and plaintiff and Olson both had lighted lanterns.

Another switchman, Dodd, was along by the side of the first or most westerly car. After the engine had coupled onto this car Olson gave the engineer a back up signal. The engine and the car then moved backward, or east, and the easterly end of car 1 came in contact with the westerly end of car 2, but did not couple.

On direct examination plaintiff testified:

"After the east end of Car 1 came in contact with the west end of Car 2 Olson gave the engineer another back up signal. At this time Olson was at the point where Cars 1 and 2 were to be coupled together and was about 60 feet west of me. At this time I was at the west end of Car 3. I watched to see that the coupling made between Cars 2 and 3. Before the two cars came back I did not give Olson any directions or instructions. I called to Olson and told him that we would take all of the cars off the house track and `spot' the merchandise car at the high platform. At that time I was about 60 feet away from Olson. I had previously given him instructions when I was the same distance away from him. * * *

"I gave Olson the information and instructions about where the merchandise car was to be placed before he gave the back up signals."

This evidence is not entirely clear as to instructions given Olson and when given.

On cross-examination plaintiff testified:

"After Cars 1 and 2 struck, I saw him give another back up signal which meant to move the whole string...

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