Chicago, St. P., M. and O. Ry. Co. v. Muldowney

• Decision Date: 14 November 1942
• Docket Number: No. 12285.,12285.
• Parties: CHICAGO, ST. P., M. and O. RY. CO. v. MULDOWNEY.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F.2d 971 (1942)

CHICAGO, ST. P., M. and O. RY. CO. v. MULDOWNEY.

No. 12285.

Circuit Court of Appeals, Eighth Circuit.

October 26, 1942.

Rehearing Denied November 14, 1942.

COPYRIGHT MATERIAL OMITTED

Warren Newcome, of St. Paul, Minn. (Alfred E. Rietz, of St. Paul, Minn., and William T. Faricy and Nelson J. Wilcox, both of Chicago, Ill., on the brief), for appellant.

Charles E. Carlson, of Minneapolis, Minn. (Eugene A. Rerat and Walter J. Welch, both of Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

Appellee as plaintiff brought this action against appellant to recover damages for the death of Harry Muldowney, who at the time of the accident resulting in his death was in the employ of appellant as a switchman. The parties will be referred to as they were designated in the trial court. The action is brought under the Safety Appliance Act, 45 U.S.C.A. § 2, and Federal Employers' Liability Act, 45 U.S. C.A. § 51.

It is admitted that at the time of the accident resulting in Muldowney's death, both he and the defendant were engaged in interstate transportation. The controlling issues submitted to the jury were whether at the time of the accident defendant, a common carrier engaged in interstate commerce by railroad, violated the Safety Appliance Act by hauling and using on its line a car and tender not equipped with couplers coupling automatically by impact, and whether such alleged violation was the proximate cause of Muldowney's death. Both of these issues were determined by the jury in favor of the plaintiff, the jury returning a general verdict in her favor for $17,552.00, upon which verdict judgment was entered.

On this appeal defendant seeks reversal on substantially the following grounds: (1) the court erred in denying defendant's motion for a directed verdict because there was no substantial evidence of negligence or proximate cause; (2) the court erred in admitting opinion testimony of the witness Welton; (3) the court erred in refusing to give requested instructions and in giving instructions on its own motion.

At the close of all the evidence defendant moved for a directed verdict and the denial of that motion raises here the question of the sufficiency of the evidence. As the jury found all the issues in favor of the plaintiff, all conflicts in the evidence must be resolved against defendant and plaintiff is entitled to the benefit of such favorable inferences as the jury might reasonably have drawn from the evidence. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Chicago, M., St. P. & P. R. Co. v. Linehan, 8 Cir., 66 F.2d 373; Thomson v. Boles, 8 Cir., 123 F.2d 487. If, when so viewed, the evidence is such that reasonable men might differ as to the existence of facts established or as to reasonable conclusions and inferences that are to be drawn from the conceded facts, the case should be submitted to the jury. Under this rule, the jury, from the evidence, might reasonably have found the following facts:

Muldowney had been employed by the defendant as a switchman for upwards of twenty years. On the morning of March 6, 1941, he was so employed in defendant's Sioux City, Iowa, yard. Train No. 41 arrived in the Sioux City yard from Omaha, Nebraska, on the early morning of March 6, 1941. It was standing on the northbound main line tracks adjacent to and west of the Twenty-second Street yard office, the yard office being approximately a block from Twenty-second Street. It was still dark. Muldowney was a member of a switching crew engaged in breaking up this freight train. Immediately following the arrival of the train, two inspectors, one walking along each side of the train from the caboose forward, looked over the equipment for the purpose of finding out if "anything is loose, broken or dragging along the train from the bolts to the wheels." After this superficial inspection, the switching crew took out one cut of cars for switching purposes. It then took out a second cut of cars, including a Swift & Company refrigerator car No. 18589. This Swift car, together with three other cars, following a switching movement, was "kicked" back to the train so that the Swift car was then standing on the southerly end of the remaining portion of the train as it stood on this north bound main track. Then the switch engine Muldowney was riding backed up, moving northerly along this main track for the purpose of coupling onto the Swift car. Muldowney was the switchman who followed the engine and made the couplings and uncouplings between the switch engine and the various cars to be switched. He was standing on one of the steps provided for that purpose on the rear of the tender attached to the switch engine. When the engine had reached a point about three car lengths from the south end of the Swift car it was shut off and drifted gradually, slowing down until it was going two or three miles an hour. Yardmaster Stickels, who was standing approximately twenty feet from the south end of the Swift car when the engine approached it, thinking it was about time for the engineer to slack ahead, turned around and observed Muldowney's lantern lying between the cars in the middle of the north bound track. Muldowney was between the coupler of the locomotive and the coupler on the southerly end of the Swift car. He was standing upright, facing north. Stickels then called the engineer to move ahead. After the switch engine had been moved ahead, Yardmaster Stickels rescued Muldowney, had him placed in an ambulance and taken to a hospital where he died without recovering consciousness. Within twenty minutes following the removal of Muldowney the crew attempted to proceed with the switching operation. The switch engine stood twenty feet south of the Swift car, where it had stopped after the discovery of Muldowney's accident. It backed up to contact the coupler on the Swift car but the coupling did not make. The knuckle on the Swift car was then opened and another attempt to couple the car with the engine was made but the coupling again failed. The drawbars on the switch engine and the Swift car were out of alignment to such an extent that a coupling could not be made without an adjustment of the drawbars. The engine was then slacked ahead and the knuckles on both the Swift car and the switch engine were opened and the drawbar on the Swift car was adjusted. After a switchman had adjusted the drawbar on the Swift car, the cars coupled automatically.

Ordinarily, where a drawbar is off center it may be straightened by taking hold of it with the hand and pulling it over to normal position. The coupling apparatus is so constructed as normally to have a play of one and one-half inches to either side, or an overall play of three inches. This play is necessary to permit cars when coupled together to pass around curves without danger of derailment or injury to the cars, and in order that cars may be coupled together on a curve. The coupling apparatus on the tender was so constructed as to permit a movement of the drawbar, within limits, from side to side, and because kept oiled it could be moved from side to side with little effort; but the drawbar on the refrigerator car required greater effort to move from side to side. If couplers are not lined up correctly, they will not couple automatically. When out of alignment or off center, it is the usual custom for the brakeman to step between the cars and push or pull the drawbars over with his hands, and in the instant case it was the duty of Muldowney to see that these cars were properly coupled and if there was an adjustment to be made in the drawbars, it was his duty to make it as he was engaged in an attempt to make this coupling. If the couplers are out of alignment beyond the normal play, the coupling will not make automatically even though both knuckles are opened. The adjustment of the drawbars can not be made by use of the lever-operated pinlifter.

Based upon the opinion of an expert witness, the jury might have found, and manifestly did find, that the presence of a man's body between the two drawbars could not have forced the drawbars out of line, and that the presence of a man's body between the couplers, under the circumstances disclosed by the evidence which was embodied in a question, would cause the knuckles to close; that the drawbars on the Swift car and the switch engine were at and immediately prior to the time of the accident so far out of alignment that the coupling would not make automatically; that observing this condition of the couplers Muldowney, while the engine was slowly moving toward the Swift car, stepped off the engine in between it and the Swift car for the purpose of adjusting the drawbar and in so doing was caught between the couplers.

It is contended by plaintiff that the jury might also have properly found that the engineer brought the engine to a complete stop approximately twenty feet from the point of accident and then started it...