Dugas v. Kansas City Southern Railway Lines

• Decision Date: 27 March 1973
• Docket Number: No. 72-2338.,72-2338.
• Citation: 473 F.2d 821
• Parties: R. P. DUGAS, Plaintiff-Appellee, v. The KANSAS CITY SOUTHERN RAILWAY LINES et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

473 F.2d 821 (1973)

R. P. DUGAS, Plaintiff-Appellee, v. The KANSAS CITY SOUTHERN RAILWAY LINES et al., Defendants-Appellants.

No. 72-2338.

United States Court of Appeals, Fifth Circuit.

February 2, 1973.

Rehearing and Rehearing Denied March 27, 1973.

COPYRIGHT MATERIAL OMITTED

Bryan J. McGinnis, Beaumont, Tex., for defendants-appellants.

Nick C. Nichols, Houston, Tex., Gordon R. Pate, Beaumont, Tex., W. James Kronzer, Houston, Tex., for plaintiff-appellee.

Gay C. Brinson, Jr., Houston, Tex., for Missouri-Kansas.

Before WISDOM, BELL and COLEMAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 27, 1973.

COLEMAN, Circuit Judge:

The appellant, R. P. Dugas, was working for Kansas City Southern Railway Company (KCS) as a car cleaner when a boxcar door fell, shattering his left hip, fracturing his right pelvis, and causing the loss of several pints of blood. He brought suit under the Federal Employers' Liability Act, 45 U.S.C., § 51. The jury awarded damages in the sum of $200,000. The railroad appeals.

The judgment of the District Court will be affirmed as to liability but reversed and remanded for a new trial on the issue of damages.

Dugas alleged that there were imperfections in the door which caused it to fall off and which could have been discovered upon proper inspection by the railroad. He also invoked the doctrine of res ipsa loquitur.

On appeal, the railroad asserts that (1) the doctrine of res ipsa loquitur did not apply, (2) the trial court erred in its instruction on damages, and (3) the verdict is excessive.

Dugas' primary job with the railroad was to clean out boxcars in the KCS yard at Port Arthur, Texas. After empty cars come into the yard, they are channeled to the "cleaning track". Crews of two or four men open the boxcar doors, sweep out any debris, and wash the interior with a high pressure hose. The usual procedure is first to open the doors on all the cars to be washed and then to begin the cleaning process. The cars are not usually safety checked until they have been cleaned.

On the morning of May 25, 1970, Dugas and his co-worker, Willie Lockridge, had opened four or five cars before reaching the boxcar which caused this litigation. They opened the door on one side of the car and went around to the other side to open the other door. Dugas testified that Lockridge pried the door open with a small crowbar. Then they both pushed it open wider. Dugas stated that when the door was about halfway open it fell off the car and onto him.

Lockridge testified that if a side sill (a horizontal support bar on the bottom of the car) had been broken, he would have noticed it, and there was none broken. He also stated that he and Dugas shoved the door hard against the door stop and that it fell off only after it had hit the door stop.

Within five minutes of the accident, F. C. Arnold, Jr., a car foreman for the KCS with thirty-two years experience as a car repairman and car foreman, inspected the boxcar. He inspected the car door roller tracks and did not find any breaks or loose welds in them, nor did he find any breaks of the side sills. He said that the car cleaners would not have found anything wrong with the door if they had inspected it. Mr. Arnold further testified that if the opening door had been shoved hard against the door stops, it could cause the door to bounce off its tracks. He said that the boxcar in question "might have" received a customary walking inspection when it first entered the yard.

Subsequent to the accident, the car carried a load of drums to the Texas Company Terminal and then was sent to the KATY repair shop in Denison, Texas. M. E. Wilkinson, a car repairman with KATY Railroad, testified that the boxcar had several broken metal support braces underneath the car, including a cracked side sill. He stated that a broken side sill will cause vibrations when the car is running. These vibrations may cause a spot weld on the door's lower track to break and drop down. Mr. Wilkinson stated that such structural defects might have caused the door to fall off. Neither Mr. Wilkinson's testimony nor the repair order card of the car showed any defect in the top track of the car's door.

J. H. Weis, a former car inspector for KCS who testified for Dugas, stated under cross-examination that this particular type of boxcar was one where the doors are attached to the top track and they did not slide on the bottom rails. All of the weight of the door is on the top, and the bottom is just a groove to guide the door when it opens and closes. But Mr. Weis did say that if the bottom track had dropped down, even slightly, then the door might slide out from the top track.

RES IPSA LOQUITUR

The railroad contends, for several reasons, that the doctrine of res ipsa loquitur was incorrectly applied in this case.

Ordinarily, there are three prerequisites to the application of the doctrine: (1) the accident must be of a kind which ordinarily would not occur in the absence of negligence on the part of someone; (2) the injury must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the occurrence must not have been due to any voluntary action on the part of the plaintiff, Furness, Withy & Company v. Carter, 9 Cir., 1960, 281 F.2d 264; Atchison, T. & S. F. Ry. Company v. Simmons, 10 Cir., 1946, 153 F.2d 206.

In Jesionowski v. Boston & Maine Railroad Company, 329 U.S. 452, 67 S. Ct. 401, 91 L.Ed. 416 (1946), the Supreme Court had occasion to consider the application of res ipsa to FELA cases, particularly the "exclusive control" features of that doctrine.

In that case a brakeman, while in the process of switching cars, was killed when a car was derailed, throwing him to his death. The Court of Appeals for the First Circuit had held that res ipsa loquitur could not be invoked in an extraordinary accident growing out of a set of circumstances which included activity of the injured person. Evidence on behalf of the railroad was sufficient to authorize, but not compel, a jury finding that the derailment was caused by the negligence of the deceased in handling the switch. There was other evidence from which a jury could have found that the derailment was caused by a defect in a frog operated with a spring mechanism. This was disputed by evidence to the effect that the frog and switch were in good condition both before and after the derailment.

Subsequent to a discussion of the general principles applicable to the use of res ipsa, the Supreme Court held that the rule as applied by the First Circuit

"* * * would bar juries from drawing an inference of negligence on account of unusual accidents in all operations where the injured person had himself participated in the operations, even though it was proved that his operations of the things under his control did not cause the accident. This viewpoint duly restricts the power of juries to decide questions of fact, and in this case the jury\'s right to draw inferences from evidence and the sufficiency of that evidence to support a verdict are Federal questions. A conceptualistic interpretation of res ipsa loquitur has never been used by this Court to reduce the jury\'s power to draw inferences from facts. Such an interpretation unduly narrows the doctrine as this Court has applied it."

The judgment of the First Circuit was reversed.

The railroad argues that by opening the boxcar door Dugas was at least in partial control of the instrumentality whence came the injuries, thus defeating the application of the res ipsa doctrine.

We are of the opinion that the teachings of Jesionowski mandate the rejection of this argument.

Moreover, it is the settled law of this Circuit that res ipsa loquitur is proper even though the plaintiff attempts to prove exactly what happened, Texas & Pacific Railway Company v. Buckles, 5 Cir., 1956, 232 F.2d 257, cert. denied 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498; Kansas City Southern Railway Company v. Justis, 5 Cir., 1956, 232 F.2d 267, cert. denied 352 U.S. 833, 77 S. Ct. 49, 1 L.Ed.2d 53.

Since the doctrine of res ipsa loquitur is a rule of evidence it is not necessary that it be referred to in the pleadings, Fassbinder v. Pennsylvania Railroad Company, 3 Cir., 1963, 322 F.2d 859; Ramsouer v. Midland Valley Railroad Company, 8 Cir., 1943, 135 F.2d 101.

As pointed out in Jesionowski, supra, the Act creates federal rights protected by federal rather than state law, Bailey v. Central Vermont Railroad, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943).

The next attack is aimed at the trial instructions on res ipsa.

Those instructions (which we have paragraphed for clarity) were as follows:

"Further, the Court would instruct you that in regard to the doctrine of res ipsa loquitur, the mere fact that an accident happened, standing alone, does not, unless otherwise expressly stated, permit the jury to draw the inference that the accident was caused by anyone\'s negligence.

"However, there is an exception to this general rule known as the doctrine of res ipsa loquitur.

"In addition to plaintiff\'s specific charges of negligence against the defendant, R. P. Dugas is also relying here upon the doctrine of res ipsa loquitur, which is a Latin term meaning that the thing or occurrence speaks for itself.

"Res ipsa loquitur means that the facts of the occurrence may warrant an inference of negligence, not that they compel such an inference, but they furnish evidence of negligence where direct evidence may be lacking.

"But, it is evidence to be weighed, not necessarily to be accepted as sufficient, which may call for explanations or rebuttal, not necessarily that it requires such explanation or rebuttal. When a thing which causes injury which is under the control of the defendant and an accident as such as in the ordinary course of things does not occur if the one being in control uses proper care, it affords reasonable evidence in the absence of a reasonable

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