Cullinan v. Burlington Northern, Inc.
| Decision Date | 10 September 1975 |
| Docket Number | No. 74-1285,74-1285 |
| Citation | 522 F.2d 1034 |
| Parties | William T. CULLINAN, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., a Delaware Corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before WRIGHT and CHOY, Circuit Judges, and PLUMMER, * Senior District Judge.
This is an appeal from a directed verdict for the plaintiff on the issue of liability and a refused instruction on damages in an F.E.L.A. case. We affirm.
The plaintiff, William Cullinan, was an experienced member of a Burlington Northern wrecker crew which was sent in August of 1971 to clean up a railroad derailment site in Montana. The operation was under the control of a master mechanic who supervised the wrecker foreman. The wrecker crew consisted of four groundsmen, a large bulldozer and a crane mounted on a railway car, each with its own operator.
A major task of the crew was to return to the tracks a number of derailed gondola cars loaded with coal by overturning them with a cable pulled by the wrecker crane, righting them by the same method, and then by placing them back on their trucks and the track.
Two of the gondola cars lay to the east of the tracks, parallel to one another and several yards apart. The master mechanic, in accord with company rules, consulted with the foreman about a general plan of operation. They agreed to roll the gondola nearest the tracks eastward toward the second car in order to empty it. No agreement was made to place the cars in contact.
The car was rolled eastward. However, it came into contact with the second car and did not turn completely over. Wedged against the second car, the gondola canted at a thirty degree angle with its bottom upward. The wrecker foreman and plaintiff climbed onto the car to fix the cable for the roll in the opposite direction. They found that the cable from the wrecker had so much slack that the hook at its end would not remain in place in the eyelet used for rolling the car. The foreman signalled to have the cable lifted, then to stop, signalled again for the slack to be taken out and again to stop. Either when he signalled for the last stop or immediately thereafter the car began to rock and then rolled back on its side. Plaintiff was thrown off and injured. Although the parties disputed whether the crane operator stopped when told to do so, the witnesses agreed that the gondola car would not have moved without a taut cable and pressure from the crane.
The court directed the jury to find that the railroad had been negligent in failing to provide a safe place for the plaintiff to work and that the negligence had been the proximate cause of the injury, but the question of contributory negligence was allowed to go to the jury.
We have held that only in an "exceptional case will the plaintiff in an accident case be entitled to a directed verdict on his behalf." Juhnke v. EIG Corp., 444 F.2d 1323, 1325 (9th Cir. 1971). A verdict can be directed where "without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict." Brady v. Southern Railway, 320 U.S. 476, 479-480, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). The trial judge is obliged to view the evidence in the light most favorable to the party moved against, even though contrary inferences might reasonably be drawn. Case-Swayne Co. v. Sunkist Growers, Inc., 369 F.2d 449, 452 (9th Cir. 1966); Moore, Federal Practice, P 50.02(1) at p. 2325.
Here the experienced trial judge found that there was uncontradicted evidence from defendant's witnesses that the railroad had been negligent in not...
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