Director General of Railroads v. Ronald

• Decision Date: 19 March 1920
• Docket Number: 128.
• Citation: 265 F. 138
• Parties: DIRECTOR GENERAL OF RAILROADS v. RONALD.
• Court: U.S. Court of Appeals — Second Circuit

265 F. 138

DIRECTOR GENERAL OF RAILROADS v. RONALD.

No. 128.

United States Court of Appeals, Second Circuit.

March 19, 1920

Kenefick Cooke, Mitchell & Bass, of Buffalo, N.Y. (Thomas R. Wheeler of Buffalo, N.Y., of counsel), for plaintiff in error.

Hamilton Ward, of Buffalo, N.Y. (Dana L. Spring, of Buffalo, N.Y., of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

WARD Circuit Judge.

This is an action under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665) to recover damages for personal injuries. The plaintiff was assistant tool train foreman on the Lehigh Valley Railroad, operated by the defendant, Director General of Railroads. June 11, 1918, he went in charge of a wrecking train from Buffalo to the Suspension Bridge in the state of New York to adjust a shipment of poles on nine cars bound from Toledo, Ohio, to Midway, Conn. He arrived at 10:20 a.m., finished work at 5:20 p.m., and returned to headquarters at Tifft Farm Junction, East Buffalo, about 7:20 p.m. There his train had to be turned around, so as to head eastward, in accordance with the company's practice. In doing this it was necessary to stop at a point where the tank of the derrick car could be filled with water by means of a hose from a water plug, so as to be ready for immediate service. Until this was done the day's work was not finished. The plaintiff was in the act of dropping from the platform of the caboose car as the train approached this water plug; his right hand holding onto a vertical grabiron on the side of the car, when his weight pulled out the lower end, and he was thrown down on his face and severely injured. The ends of the grabiron were screwed to the wooden side of the car by ordinary screw bolts.

Both parties moved for a direction, and Judge Hazel directed a verdict for the plaintiff, leaving to the jury the question of the amount of damages. Section 4 of the Safety Appliance Act of March 2, 1893 (27 Stat. 531 (Comp. St. Sec. 8608)), provides as follows:

'Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

Section 8 (section 8612) provided:

'That any employe of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.'

Section 3 of the Act of April 14, 1910, 36 Stat. 298 (Comp. St. Sec. 8619), being a supplement to the Safety Appliance Act, authorizes the Interstate Commerce Commission to designate the number, dimensions, location, and manner of application of the appliances provided for in The Interstate Commerce Commission has by order dated March 13, 1911, provided that for caboose cars with platforms grabirons shall be applied 'with not less than one-half inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half inch rivets.'

The Safety Appliance Act makes it the absolute duty of the railroad companies to conform to the requirements of the act. Louisville & Nashville R.R. Co. v. Layton, 243 U.S. 617, 37 Sup.Ct. 456, 61 L.Ed. 931. It is admitted that the grabiron in question did not conform to the regulation of the Interstate Commerce Commission, in that the bolts did not have a rivet head at the inner and a nut at the outer end.

The first objection of the defendant is that the grabiron in question was not one within section 4 of the Safety Appliance Act, 'in the ends and sides of each car for greater security to men in coupling and uncoupling cars,' and therefore that the Interstate Commerce Commission had no authority to regulate it. But it is not necessary that the employe should be injured while coupling or uncoupling. If the grabiron could be used in getting to the point where the cars were to be coupled or uncoupled, it would be within the section. This is admittedly a liberal construction which was adopted in McNaney v. C.R. & I.R.R. co., 132 Minn. 391, 157 N.W. 650, and we are willing to follow it.

The defendant next objects that the plaintiff was not engaged in interstate commerce, and therefore not entitled to recover under the federal Employers' Liability Act. The majority of the court are of the opinion that he was so engaged. Although he finished his work at the Suspension Bridge at 5:20 p.m., he did not finish his trip or prepare his train for immediate service before he was injured. Until he had done this his day's work was not finished, and we agree with the trial judge that his interstate employment had not ended. Erie R.R.Co. v. Winfield, 244 U.S. 170, 37 Sup.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662.

The federal Employers' Liability Act, exclusively regulating the relation of common carriers and their employes while engaged in interstate commerce, was enacted long after the Safety Appliance Act, viz. April 22, 1908 (35 Stat. 65), and this absolute duty of the railroad company under the Safety Appliance Act to its employes, injured when engaged in interstate commerce, must be considered as incorporated in it. Whenever a violation of that act is the proximate cause of the injury, the negligence of the railroad company is ipso facto established. The exemptions in favor of such employes are greater in the Employers' Liability Act than that conferred by section 8 of the Safety Appliance Act; sections 3 and 4 (Comp. St. Secs. 8607, 8608) providing that no such employes shall be held to have been guilty of contributory negligence, or to have assumed the risks of the employment in any case, where the violation by the common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.

Were this otherwise, both parties having asked for the direction of a verdict, the direction of a verdict for the plaintiff by the trial judge establishes the fact that the defendant was negligent. Sampliner v. Motion Pictures Co., 255 F. 242, 168 C.C.A. 202.

We discover no error in the record, and the judgment is affirmed.

MANTON Circuit Judge (concurring).

The plaintiff below recovered a judgment as the result of a directed verdict of the District Court after both sides had submitted their proof and each requested the direction of a verdict. The motion for a direction was as follows:

'Mr. Spring: If your honor please, I move for a direction of a verdict in favor of the plaintiff upon the ground that, upon the disputed proof, except as to the matter of damages, it was a violation of the Safety Appliance Act, in that the witnesses all agreed that this grab handle was not fastened to the car with a bolt which had a rivet head on one end and a nut on the other, which is a plain violation of the act, and of course upon the ground, aside from the order of the Interstate Commerce Commission, that it was not securely fastened. Now, under the authorities which I have given to your honor, the question of the assumption of risk, if it is in violation of the Safety Appliance Act, and the question of contributory negligence, are limited, so that there is no question here whatever excepting the question of damages. Now, there are a number of cases where the parties do not join in a motion for a direction of a verdict, as they do here, where the motion has been made with the defendant opposing it, where the courts have granted the motion of the plaintiff for violation of the Safety Appliance Act.'

An exception was taken to this ruling. Liability was then imposed for a violation of Safety Appliance Act March 2, 1893, c. 196, Sec. 4, 27 Stat. 531. If the Safety Appliance Act does not apply, then the verdict was directed on an erroneous theory.

The question of damages alone was submitted to the jury; the court taking this latter course of its own motion. In the complaint filed the plaintiff below averred that on the day of his accident he was engaged in adjusting carloads of poles which were en route in interstate commerce, and that in so doing he used the wrecking train and appliances of the defendant below, and that while he was alighting from said wrecking train in the course of his duty he grasped one of the grabirons or handholds of one of the cars of the train for aid in alighting therefrom, and that the handhold gave way, causing him to fall and receive the injuries for which he has recovered damages. It is averred that the handhold was not constructed in accordance with the requirements of the Safety Appliance Act, or in accordance with the orders of the Interstate Commerce Commission given pursuant to the act. Section 4 (section 8608, U.S. Compiled Statutes); section 3 (section 8619, U.S. Compiled Statutes). The answer put in issue the allegations of negligence, the right of recovery under the Safety Appliance Act, and affirmatively alleged that the sole remedy of the plaintiff below is under the Workmen's Compensation Law of New York state. Chapter 41, Laws 1914, constituting chapter 67, Consolidated Laws.

The wrecking train, of which the plaintiff below was an assistant foreman, proceeded from Buffalo to Suspension Bridge, N.Y and there concededly was engaged in interstate commerce in the adjustment of poles upon the cars. These poles were so long as to require three cars for their carriage. After the readjustment of the poles upon the cars, the derrick car and the...