CHICAGO, M., ST. P. & PR CO. v. Alva Coal Corporation

• Decision Date: 16 August 1966
• Docket Number: No. 15357.,15357.
• Citation: 365 F.2d 49
• Parties: CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, Plaintiff-Appellee, v. ALVA COAL CORPORATION and Peabody Coal Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.2d 49 (1966)

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, Plaintiff-Appellee, v. ALVA COAL CORPORATION and Peabody Coal Company, Defendants-Appellants.

No. 15357.

United States Court of Appeals Seventh Circuit.

July 6, 1966.

Rehearing Denied August 16, 1966.

COPYRIGHT MATERIAL OMITTED

David E. Rosenfeld, Robert G. Wolfe, Terre Haute, Ind., for appellants.

William P. Wooden and Henry J. Price, Indianapolis, Ind., Barnes, Hickham, Pantzer & Boyd, Indianapolis, Ind., of counsel, for appellee.

Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.

HASTINGS, Chief Judge.

Alva Coal Corporation, a Kentucky corporation, engaged in coal mining in Indiana, and Peabody Coal Company, an Illinois corporation, defendants-appellants,¹ have appealed from a final judgment entered against them in favor of Chicago, Milwaukee, St. Paul and Pacific Railroad Company (railroad), a Wisconsin corporation. The railroad instituted this diversity action against Alva for indemnity or contribution for a payment made by the railroad in settlement of negligence litigation instituted against it by one of Alva's employees, Troy Scroggins. The jury found that the railroad was entitled to contribution from Alva in the sum of $61,452.06, and the court entered judgment accordingly.

On appeal, Alva relies on errors in instructions, rulings on evidence, and the trial court's refusal to grant its respective motions for judgment on the pleadings, summary judgment, directed verdict, new trial, and refusal to sustain Alva's motion for judgment notwithstanding the verdict.

As a part of its mining operations in Indiana, Alva operates a railroad siding, a part of the track of which lies beneath a coal tipple. The tipple is used to load empty railroad cars by gravity.

Each working day, an employee of Alva, known as the "empty car dropper", receives instructions concerning the type of coal cars to be brought down to the tipple. The empty car dropper moves empty coal cars downhill by gravity to the tipple track from the empty coal car storage track. In order to bring down coal cars of the desired type to the tipple, the empty car dropper uncouples cars, which are coupled in strings on the storage track, and brings the desired cars down by releasing the hand brakes. He rides on the cars as they roll down, and if the string of empty cars being moved begins to roll too fast, he applies the handbrakes to slow them.

On November 2, 1962, Gordon K. Wright, an employee of Alva, was engaged in his duties as an empty car dropper, bringing a string of empty cars down to the tipple. Customarily, Wright would bring three or four cars down at a time. On this particular day, he did not find slack in the couplings between cars on the storage track, sufficient to enable him to uncouple cars, until he came to the couplings between the eighth and ninth cars of a string of cars. While Wright apparently intended to uncouple these two cars and then release the handbrakes on the eighth car so that it would roll down to create slack between the seventh and eighth cars, and so on, until there was sufficient slack between the third and fourth cars to permit uncoupling, when he released the handbrake on the seventh car, the entire string of eight cars began to roll downhill.

The last three cars of the eight cars in the string which began to move down the hill had been delivered to Alva by the railroad the day before and had been in the custody and control of Alva since delivery. The first five cars in the string were cars which had been delivered to Alva by the Pennsylvania Railroad Company.

At the time Wright was attempting to bring down the eight cars, Troy Scroggins was working in front of a railroad car at the tipple, attempting to move it beneath the tipple. The car with which Scroggins was working was between Scroggins and the eight cars Wright was bringing down from the storage tracks onto the tipple tracks.

When the cars had begun to roll downhill together, the brakes on the first and sixth cars in the string had apparently been set; and as the cars rolled, Wright set the handbrakes on the seventh car and then on the second and third cars. The string did not stop, however, but ran into the rear of the car in front of which Scroggins was working. This car was pushed over Scroggins, cutting off his arm and leg.

After the accident, the cars were inspected. The handbrakes were found to be set on the sixth, seventh, and eighth cars. No defects were found in any of the handbrakes, except that on the first car: its handbrake was disconnected.

At the trial, there was testimony that, in the fact situation described above, the handbrake on the sixth car, a car delivered to Alva by the railroad, would have held the runaway string if it had been efficient.

Scroggins instituted an action against the railroad and the Pennsylvania Railroad Company, alleging violation of the Safety Appliance Act, 45 U.S.C.A. § 11,² through the hauling and use of cars not equipped with efficient hand brakes. This suit was settled by compromise when the railroad and the Pennsylvania Railroad each paid Scroggins $117,500.00.

There was a sidetrack contract between the railroad and Alva which applied to the mine where the accident occurred. This contract provided in pertinent part:

"9. * * *

"The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.

"* * *.

"11. The Railroad Company shall not be obligated to operate over that portion of said track lying beneath the coal tipple, and the Industry agrees that it will operate and handle all cars over said portion of the track beneath the coal tipple and over the track scale with its own means and forces, and at its own sole cost, expense and risk."

Prior to settlement of the Scroggins suit, Alva was invited by the railroad to assume the defense of the action. Alva declined. Expressly denying liability, Alva also informed the railroad that it would not challenge the $117,500.00 settlement as unreasonable.

The railroad's complaint against Alva for indemnity and contribution contained, in paragraph 8, the following allegations of negligent acts and omissions:

"(a) The defendant, by its employee, Gordon K. Wright, attempted to move too many cars at one time under the circumstances, considering the slope of the hill, the available distance within which to stop such cars before striking the car in front of which Troy Scroggins was working, and the wet condition of the rails.

"(b) The defendant, by its employee, Gordon K. Wright, allowed the group of cars to roll freely for too long a time and to gain too much momentum before attempting to apply brakes.

"(c) The defendant assigned Troy Scroggins duties and provided him with a place to work which required or permitted him to be between the rails of the tipple tracks and in front of an empty car which was between him and the group of eight cars and which interfered with his view.

"(d) The defendant authorized and permitted a single employee to attempt to move too many cars at one time under the circumstances then and there existing.

"(e) The defendant, by its employee, Gordon K. Wright, failed to inspect or test the hand brakes on the cars to determine whether they were effective.

"(f) The defendant, by its employee, Gordon K. Wright, failed to sound the warning device and failed to give any other warning to Troy Scroggins after the defendant knew that the group of eight cars was out of control and could not be brought to a stop before striking the car in front of which Troy Scroggins was working.

"(g) The defendant, by its employee, Gordon K. Wright, failed to set the brakes properly on the group of eight cars after they began to move.

"(h) The defendant, by its employee, Gordon K. Wright, failed to set any brakes on the first six cars in the group of eight cars.

"(i) The defendant, by its employee, Gordon K. Wright, failed to seek assistance before attempting to disconnect and move eight cars, more than could be handled safely at one time by one man.

"(j) The defendant failed to have any other employees assisting Gordon K. Wright in moving the group of eight cars.

"(k) The defendant failed to instruct other employees on the use of the warning device.

"(l) The defendant failed to have any employee at or near the operating mechanism of any of the warning devices at a time when Gordon K. Wright was attempting to disconnect and move too many cars at one time.

"(m) The defendant failed to give Troy Scroggins any warning after the group of eight cars began to roll toward him.

"(n) The defendant failed to provide Troy Scroggins a safe place to work.

"(o) The defendant permitted or directed Troy Scroggins to work between the rails of the tipple tracks and on the downhill side of an empty car.

"(p) The defendant failed to notify Troy Scroggins that the defendant was attempting to uncouple and move eight cars at a time when Troy Scroggins was working between the rails on the downhill side of an empty car on the same track.

"(q) The defendant failed to promulgate safety rules designed to avoid an accident such as that which occurred.

"(r) The defendant failed to instruct its employees as to its safety rules.

"(s) The defendant failed to enforce its safety rules and failed to see that its safety rules were obeyed."

I

On appeal, Alva contends that the contribution issue should not have been submitted to the jury. The sidetrack contract provided contribution only if the liability respecting which contribution is sought arose from the joint or...