Coleman v. Burlington Northern, Inc.

• Decision Date: 28 June 1982
• Docket Number: No. 81-2076,81-2076
• Citation: 681 F.2d 542
• Parties: Darrel COLEMAN, Appellee, v. BURLINGTON NORTHERN, INC., a Delaware corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 542

681 F.2d 542

Darrel COLEMAN, Appellee, v. BURLINGTON NORTHERN, INC., a Delaware corporation, Appellant.

No. 81-2076.

United States Court of Appeals,

Eighth Circuit.

Submitted May 17, 1982.

Decided June 28, 1982.

Yaeger & Yaeger, P.A., John B. McCarthy, Minneapolis, Minn., for appellee.

H. K. Bradford, Jr., Richard V. Wicka, Thomas W. Spence, Michael Saeger, St. Paul, Minn., for appellant.

Before LAY, Chief Judge, HENLEY, Circuit Judge, and MARKEY, ^* Judge.

LAY, Chief Judge.

This is an appeal from a judgment notwithstanding the verdict entered for the plaintiff employee of the Burlington Northern railroad on the issue of liability in an action involving a lower back injury allegedly sustained in the course and scope of employment. The suit was filed under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and was predicated on a statutory violation of section 2 of the Federal Safety Appliance Act, 45 U.S.C. § 2. The trial was before a jury, and a general verdict for the railroad was returned. The trial court, the Honorable Robert G. Renner presiding, then granted plaintiff's motion for a judgment notwithstanding the verdict on the issue of liability and ordered a new trial on the issue of damages. On retrial the jury returned a verdict of $10,000 damages. The railroad now appeals from the original order granting the judgment notwithstanding the verdict and a new trial on damages. We reverse the judgment of the district court with directions to reinstate the earlier verdict for the railroad.

On September 6, 1974, Coleman worked as a switchman for the defendant in the Willmar, Minnesota, yard. Coleman claims that a pinlifter device failed to function properly when he attempted to uncouple a car, and that repeated efforts to make the device work by pulling harder only proved unsuccessful. Bjork, a co-employee, corroborated Coleman's testimony that when the pinlifter failed to work he called out in pain and Bjork came to his assistance. Bjork testified that he too was unable to effectuate uncoupling with the same pinlifter lever used by Coleman. Bjork was able to uncouple the car only after crossing between the cars and using an adjacent pinlifter lever. Notwithstanding this alleged malfunction, neither workman "bad ordered" the car in question. The railroad's safety rules require employees to "bad order" or report and take unsafe or defective cars out of service immediately and to place them on repair tracks for identification, repair and inspection. Coleman completed his shift that day, but missed a couple of days of work with what was later diagnosed by a company doctor as a strained back. Coleman thereafter worked full time as a switchman without missing any significant time from work until November 1976. During this interim period he also helped build a house, water skiied and hunted on a regular basis. In November 1976 Coleman reinjured his back while crawling in a confined space in the back of a truck during a hunting trip. The neurologist's diagnosis was a bulging lumbar disc requiring conservative treatment and brief immediate hospitalization. The neurologist's prognosis at the time of the trial was the condition was both permanent and degenerative.

The railroad was unable to directly controvert Coleman's testimony regarding the alleged equipment failure. The railroad relied on evidence showing (1) neither Coleman or Bjork "bad ordered" the car with the "faulty" pinlifter; (2) both employees acknowledge that the defendant's safety rules required them to "bad order" cars with defects or unsafe conditions which may cause injury; (3) plaintiff's pre-employment physical reveals a pre-existing back condition of mild scoliosis; (4) plaintiff did not disclose his back condition in a 1979 company physical; (5) plaintiff lied about his condition while undergoing an examination by his treating physician. The defendant also offered the testimony of another railroad employee regarding Coleman's job performance and company policy regarding defective equipment. The plaintiff offered explanations for each of these facts.

45 U.S.C.S. § 2 provides:

On and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such 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.

Proof of a violation of this statute is sufficient to establish liability under the Federal Employers' Liability Act. It is well settled that a railroad employee in a personal injury action predicated on the Safety Appliance Act need only prove a statutory violation and is not required to prove negligence. See Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969); O'Donnell v. Elgin, Joliet & Eastern Ry., 338 U.S. 384, 390-91, 70 S.Ct. 200, 204-05, 94 L.Ed. 187 (1949).

The district court correctly observed:

The law is clear that the duty imposed by the Safety Appliance Act is absolute. The theory is neither common law negligence nor strict liability, but statutorily imposed absolute liability. If a pinlifter fails to operate properly and injury thereby results, liability is imposed no matter what the railroad may have done to insure its proper operation and no matter if it worked properly both before and after the malfunction. Affolder v. New York, Chicago & St. Louis R.R. Co., 339 U.S. 96, 70 S.Ct. 509 (94 L.Ed. 683) (1950); Southern Pacific Co. v. Mahl, 406 F.2d 1201 (5th Cir. 1969); Chicago, St. Paul, Milwaukee & Omaha Ry. Co. v. Muldowney, 130 F.2d 971 (8th Cir. 1942); Atchison, Topeka & Santa Fe Ry. Co. v. Keddy, 28 F.2d 952 (9th Cir. 1928); Burho v. Minneapolis & St. Louis Ry. Co., 121 Minn. 326, 141 N.W. 300 (1913).

Where there is no factual issue as to the failure of a safety appliance required by the Act to function properly, the jury must be given a preemptory instruction informing them that said failure did, indeed, constitute a violation of the Act. O'Donnell v. Elgin, Joliet & Eastern Ry. Co., 338 U.S. 384, 70 S.Ct. 200 (94 L.Ed. 187) (1949).

It is also a well settled rule that "the absence of a 'defect' cannot aid the railroad if the coupler ... failed ... on the occasion in question." Carter v. Atlanta & St. Andrews Bay Ry., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949). That is, the plaintiff must show a failure of the equipment to perform as required by the Safety Appliance Act, and that failure is in itself an actionable wrong; however, the plaintiff does not have...