Cobb v. Union Railway Company

• Decision Date: 24 May 1963
• Docket Number: No. 15051.,15051.
• Citation: 318 F.2d 33
• Parties: J. R. COBB, Plaintiff-Appellee, v. UNION RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

318 F.2d 33 (1963)

J. R. COBB, Plaintiff-Appellee, v. UNION RAILWAY COMPANY, Defendant-Appellant.

No. 15051.

United States Court of Appeals Sixth Circuit.

May 24, 1963.

J. Martin Regan, Memphis, Tenn., G. Wynn Smith, Jr., Memphis, Tenn., on brief; Canada, Russell & Turner, Memphis, Tenn., of counsel, for appellant.

Thomas R. Prewitt, Memphis, Tenn., Thomas F. Johnston, R. G. Draper, Memphis, Tenn., on brief; Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., of counsel, for appellee.

Before CECIL, Chief Judge, WEICK, Circuit Judge, and TAYLOR, District Judge.

ROBERT L. TAYLOR, District Judge.

Plaintiff-Appellee, J. R. Cobb, obtained a verdict for $45,000.00 against Union Railway Company based on the Federal Safety Appliance Act (45 U.S.C. § 2)¹ and multiple violations of the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.). The Railway Company appealed from the judgment entered on the verdict.

All of the questions presented by the appeal relate to the Federal Safety Appliance Act. Defendant contends that the District Judge erred in a portion of his charge, and in refusing to charge its Special Requests Nos. 1 and 3.

The accident occurred in the early morning between 4:00 and 5:00 A.M. while the defendant's train crew was engaged in switching operations at its Parkway Yard in Memphis, Tennessee. Cobb's job was that of Yardmaster, but he assisted the train crew in switching operations at various times. This practice was not unknown to other yardmasters who worked for the Railway Company.

Cobb was injured while on top of a boxcar that was standing at the end of a cut of cars on a spur track located north of Olive Street in Memphis. The spur track is referred to in the record as "Whiskey Track" and runs in a curving and northeasterly direction from a main line track on which the defendant railroad operates its trains. The "Whiskey Track" was used for storage of cars and on the occasion of the accident ten cars were stored there. The car from which plaintiff was knocked was the last car of the ten, and was most distant from the junction of the "Whiskey Track" with the main track.

Prior to the accident, Cobb noticed that the brake on the last car of the ten was set. Realizing that the crew intended to move the last two cars of the ten cars stored on the "Whiskey Track" and switch them to the Pillsbury track and spot them at the Pillsbury plant, plaintiff decided to release the brake on the last car of these ten in order to prevent it from being damaged when the train started to move. The other members of the crew didn't know where plaintiff was, or that he intended to release the brake. The switch engine was run down the main track and then into the "Whiskey Track" and made contact with the lead car. The couple between the switch engine and the lead car was successful.

It was the crew's intention to pick up all the ten cars as shown by defendant's Answer and the testimony of the crewmen themselves. After the engine coupled with the first of the ten cars, one of the crewmen stationed himself at the Olive Street Crossing to count them as they passed and found that two of the cars were not attached to the train. The engineer was thereupon signaled that two of the cars were missing from the original ten and he returned to the "Whiskey Track" with the engine and the eight cars attached for the purpose of coupling the rear of the eight cars to the front one of the two that had been left. Cobb was standing near the rear of the second of the two cars at the time of the attempt to couple them with the other eight of the unit. He had his hands on the ladder or grabiron, awaiting the coupling of the cars before climbing to the top. After feeling the vibration which he stated was caused by an impact, he climbed on top of the car and knocked the brake off and then started back down. At that moment, the cars made another impact which knocked him from the top of the car to the ground. He stated that it was an everyday experience for him, over a period of forty years railroad service, to hold onto the ladders and grabirons of boxcars and that he believed the cars had coupled when he felt the vibration caused from the first impact.

Defendant's Special Request No. 1 was as follows:

"Under the provisions of the Safety Appliance Act requiring that cars be equipped with couplers automatically coupling by impact, I charge you, Ladies and Gentlemen, that the word `impact\' as used in this context means impact at the point in the train where the couple is sought to be made. The word `impact\' does not extend to impact at any other point further on down a cut of cars from the point where the couple is sought to be made. In other words, if you find in this case that there were, for example, two separate cuts of cars standing upon the `Whiskey Track,\' one of them consisting of six to eight cars, for example, the other cut consisting of, say, two to three cars, and if you further find that the switch engine in this case sought to couple with the first cut of cars, that is the six to eight car cut, and in so doing, pushed this cut back into the second cut of cars, then there would be no failure to couple on impact where the couple was made between the engine and the first cut of cars, but was not made between the first cut of cars and the second cut of cars."

In order to put the trial court in error for failing to charge as requested, the request must correctly state the applicable law. The jury could have concluded from the language in this request that plaintiff's entire case, as it related to the Federal Safety Appliance Act, turned on the question whether a proper coupling was made on the impact between the couplers on the engine and the first of the eight cars that were stored on the "Whiskey Track." This was but one of the issues. Another was whether the engine properly coupled with the ten cars so as to move them as a unit and that thereafter the eighth and ninth cars separated because of a defect in the couplers.

As previously noted, defendant's Answer admitted that the crewmen intended to take all of the ten cars from the "Whiskey Track" at the time of the first movement there by the switch engine. One or more of the crewmen testified that that was their intention and that they believed that they had joined all of the ten cars with the switch engine until the crewman stationed at the Olive Street Crossing discovered that two of them had been left behind.

The jury could have found that the couplers were properly set on the rear car of the eight cars and the front car of the two cars and that they failed to automatically couple by impact due to defect in one or more of the couplers. Or, the jury could have found that the eight cars initially coupled with the two cars and thereafter uncoupled because of a defect in the couplers. In either event, the only issue that would remain was whether the failure to automatically couple upon first impact or the fortuitous uncoupling of the two cars was the proximate cause of plaintiffs' injuries.

The Safety Appliance Act requires that cars remain coupled until freed by some purposeful act after a coupling is effected. O'Donnell v. Elgin, Joliet & E. R. Co., 338 U.S. 384, 389, 70 S.Ct. 200, 94 L.Ed. 187.

If a violation is established, only the proximate cause of the injuries remains as an issue. Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430, 434, 70 S.Ct. 226, 94 L.Ed. 236. If a violation is a contributory proximate cause of the...