Clark v. Kentucky and Indiana Terminal R.R.

• Decision Date: 09 April 1984
• Docket Number: No. 81-5804,81-5804
• Citation: 728 F.2d 307
• Parties: John CLARK, Plaintiff-Appellant, v. KENTUCKY AND INDIANA TERMINAL RAILROAD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 307

728 F.2d 307

John CLARK, Plaintiff-Appellant, v. KENTUCKY AND INDIANA TERMINAL RAILROAD, Defendant-Appellee.

No. 81-5804.

United States Court of Appeals Sixth Circuit.

Argued Nov. 30, 1982.

Decided Feb. 21, 1984.

Rehearing and Rehearing En Banc Denied April 9, 1984.

John T. Papa, Lead Counsel, argued, Callis & Hartman, Granite City, Ill., Edwin I. Baer, Louisville, Ky., for plaintiff-appellant.

Gerald Kirven, argued, Baird, Kirven, Westfall & Talbot, Louisville, Ky., for defendant-appellee.

Before KENNEDY and KRUPANSKY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. ^*

FAIRCHILD, Senior Circuit Judge.

This is an appeal from judgment notwithstanding the verdict for defendant Kentucky and Indiana Terminal Railroad ("K & I") on the issue of liability for personal injuries to an employee under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60 (1976), predicated upon a statutory violation of the Federal Safety Appliance Act of 1893 ("FSAA"), 45 U.S.C. Secs. 1-7 (1976). The jury returned a verdict finding that plaintiff John Clark was injured as a result of K & I's operation of a railroad car equipped with a coupler violating Sec. 2 of the FSAA, 45 U.S.C. Sec. 2 (1976). The district court held that the record did not support the jury's finding. We reverse the court's judgment and remand for reinstatement of the jury verdict for plaintiff.

I.

The parties to this appeal are in agreement about the essential facts presented to the jury. On the day of Clark's injury, November 1, 1978, plaintiff was working as a switchman helper at K & I's Magnolia train yard in Louisville, Kentucky. On orders from his foreman, Clark and an engineer proceeded to a spur track to remove a cut of five or six cars. With Clark directing from the side steps of the engine, the engineer backed into the track and coupled with the lead car. As the engine began to pull away, Clark noticed that the last car in the cut had been left behind and signaled for a stop. On closer inspection Clark saw that the trailing coupler on the second to last car in the cut, car number 17208, had a closed knuckle and was skewed six to eight inches off-center. Clark pulled the pin holding the knuckle closed, stepped between the cars and attempted to center the coupler. When this attempt met with resistance, Clark braced himself against the track, straining to force the coupler into place. It was then Clark felt a numbing pain in his right side that was later diagnosed a hernia. Despite the pain, Clark finished centering the coupler, stepped out from between the cars and signaled the engineer to back up. On this backing the last car was successfully coupled to the remainder of the cut.

On receiving a report of an accident, a K & I car inspector and K & I's general car foreman examined the couplers on car 17208. They found defects in the coupler Clark had struggled to align but concluded these defects would not have hindered the coupler arm's movement from side to side. The general car foreman's inspection report, which the car inspectors also signed, indicated that the coupler's lock lift and knuckle locks "were worn out and would not let knuckle lock properly. These parts were replaced ... and knuckle locked and opened properly." (Transcript ("TR") 159) Both the inspector and foreman found, as had Clark, that the metal was rubbed raw where the coupler arm rides on the coupler housing. They indicated that this wear was a natural product of the friction produced by the arm's movement and that the arm moved freely when the foreman put his back up against it and pushed.

At the end of the presentation of evidence, a dispute arose over what instructions should be submitted to the jury. K & I counsel did not challenge submission of a general negligence instruction pursuant to FELA, see 45 U.S.C. Sec. 51 (1976), on a theory that the railroad should have maintained more easily movable coupler arms, but did object to submission of an instruction based on statutory liability under Sec. 2 of the FSAA. The district court listened to argument and advised plaintiff's counsel that Clark would "have trouble keeping" a verdict under the FSAA instruction, but that the court would submit both the general negligence and statutory liability questions to the jury. (Tr. 187)

The jury found K & I in violation of Sec. 2 of the FSAA and awarded Clark $35,000 in damages. The court had instructed that the jury not go on to consider the question of general negligence under FELA which would have included consideration of plaintiff's possible contributory negligence. ¹ See 45 U.S.C. Sec. 53 (1976). The district court entered judgment notwithstanding the verdict for K & I.

II.

The FELA claim on which the jury passed rests on the narrow question of K & I's liability for injuries suffered by Clark because of an alleged violation of the FSAA. See Crane v. Cedar Rapids & I.C.R. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969). Proof of a violation of the FSAA is sufficient to trigger statutorily imposed absolute liability for resulting injuries. "[A] failure of equipment to perform as required by the [FSAA] is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability--a liability that cannot be escaped by proof of care or diligence." O'Donnell v. Elgin, J. & E.R. Co., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949).

Section 2 of the FSAA provides:

Automatic couplers

It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

45 U.S.C. Sec. 2 (1976). A plaintiff makes a sufficient showing of a violation of Sec. 2 by establishing that train couplers failed to couple automatically on the single impact in question; Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949); Phillips v. Chesapeake and Ohio Railway Company, 475 F.2d 22, 25 (4th Cir.1973); or by establishing that cars failed to remain coupled until purposely released once a coupling was effected. O'Donnell, 338 U.S. at 389, 70 S.Ct. at 203. If any probative evidence supports finding either of these violations of Sec. 2, a jury verdict of absolute statutory liability is supportable and the railroad is responsible for resulting injuries.

In a brief memorandum granting judgment notwithstanding the verdict, the district court acknowledged that "[o]nce the violation of [Section 2] is established the only burden plaintiff carries is to establish causation," but concluded that Clark "has not met the threshold burden of showing that the [couplers] did not couple on impact." K & I similarly urges on appeal that the only evidence of an impact between the last car and car number 17208 was on the second backing, and that this impact resulted in a successful couple.

In ruling on a motion to enter judgment notwithstanding the verdict, "the trial court must view the evidence in a light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in its favor." National Polymer Products v. Borg-Warner Corp., 660 F.2d 171, 178 (6th Cir.1981). "[T]he trial court may neither weigh the evidence, pass on credibility of witnesses nor substitute its judgment for that of the jury." Id. "When reviewing the trial court's decision, an appellate court is bound by the same standard." Id.

The deference given the jury's interpretation of the facts is even greater in FELA cases. "Only when there is a complete absence of probative facts to support the [finding of employer negligence under FELA] does a reversible error appear." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). See also Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2526 (1971 ed.).

The evidence indicates that Clark and the engineer intended to back up and take the full cut of cars out of the spur track. Only after Clark noticed that the last car in the cut was left behind did they realize that not all the cars were coupled. From these facts the jury could have inferred that an impact was intended and occurred between any uncoupled cars in the cut on the first backing but that the couplers failed to perform automatically between the last two cars. In this event, the failure of the couplers resulted in Clark returning to the uncoupled cars, finding a misaligned coupler with a closed knuckle, and stepping between the cars where he was injured.

This circuit has previously indicated that failure of an engine to bring out a full cut of cars after its first backing would permit the inference that an impact occurred between all the cars but the coupler did not automatically couple. See Cobb v. Union Railway Company, 318 F.2d 33, 36 (6th Cir.1963).

K & I argues that even if the jury might reasonably have found a failure of the couplers to couple on the first backing, a violation of Sec. 2 could still only be found if the plaintiff proves that the couplers were properly set to couple. In Affolder v. N.Y., C. & St. L.R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1950), the Supreme Court held a failure of cars to couple automatically is a violation of Sec. 2 assuming "the coupler was placed in a position to operate on impact." Id. at 99, 70 S.Ct. at 510. In Cobb, this Circuit approved a jury instruction charging "that if couplers fail to couple automatically because they are not properly set for coupling under the circumstances, this failure of the cars to couple is not a violation of the [FSAA], but if they fail to couple automatically by impact for any other reason, then there would be a violation of...