Eglsaer v. Scandrett, 8747.

• Decision Date: 25 October 1945
• Docket Number: No. 8747.,8747.
• Citation: 151 F.2d 562
• Parties: EGLSAER v. SCANDRETT et al.
• Court: U.S. Court of Appeals — Seventh Circuit

151 F.2d 562 (1945)

EGLSAER v. SCANDRETT et al.

No. 8747.

Circuit Court of Appeals, Seventh Circuit.

October 25, 1945.

Raymond J. Moore, of Milwaukee, Wis., for appellant.

Rodger M. Trump, of Milwaukee, Wis. (A. N. Whitlock and M. L. Bluhm, both of Chicago, Ill., of counsel), for appellees.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

EVANS, Circuit Judge.

This appeal is from a judgment for the defendant entered in an action brought pursuant to and under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of plaintiff's decedent, a railroad engineer, following injuries sustained while he was out on an engine for the purpose of repairing a defective automatic bell ringer. The jury's verdict was special. It found the automatic bell ringer on the engine was in a defective condition. It also found, in answer to another question, that the failure of the railroad to provide an automatic bell ringer in good condition was the proximate cause of the injuries to, and the death of, said engineer.

Briefly stated, the evidence disclosed that while the train stopped at Freeport, Illinois, in the course of its run from Kansas City to Milwaukee, Engineer Mackin decided to get out of his cab to fix the automatic bell ringer which had ceased to work automatically and which had to be operated manually. He told his fireman he was going to repair it. The fireman offered to do it. Mackin, however, went ahead, climbing out of the cab and onto the "cat walk," on the right side of the engine. The fireman continued stoking the engine for the few minutes the train was at rest. This caused the escape of steam to such an extent that the fireman could not see forward from his cab window. When the fireman received the signal from the brakeman to proceed, he called to Mackin, who did not answer. The fireman then got out of the cab to look for Mackin, and found him on the ground on the left side of the cab. He was unconscious. He spoke only these words, "Where am I, what happened?" He was taken to a Freeport Hospital and died three days later. His daughter, as administratrix, brought this action.

The special verdict contained six questions, four of which with answers are here set forth:¹

"1. Did the defendants fail to provide a locomotive boiler or a stoker engine in proper condition and safe to operate in the service to which the same were put? Answer: No.

"2. If you answer Question 1 `yes' then answer this question. Was such failure on the part of the defendants a proximate cause of the injuries and death of Daniel R. Mackin? Answer: * * *

"3. Did the defendants fail to provide an automatic bell-ringer in proper condition and safe to operate in the service to which it was put? Answer: Yes.

"4. If you answer Question 3 `yes' then answer this question. Was such failure on the part of the defendants a proximate cause of the injuries and death of Daniel R. Mackin? Answer: Yes."

Upon the rendition of the verdict defendants moved to change the answer to question 4 because unsupported by any evidence in the case. In other words, defendants contended that there was no evidence from which legitimate inference could arise tending to show the defective bell ringer was the proximate cause of decedent's injuries. Plaintiff, on the other hand, contends that there was evidence from which the jury could draw inferences which in turn supported the finding that the defective bell ringer was the proximate cause of decedent's fatal injuries.

The correctness of the court's action in changing the answer to the fourth question of the special verdict is the sole and determinative issue on this appeal.

In its opinion on the motion after verdict the court gave its reasons for its action.²

More specifically describing the situation which tends to connect Mackin's fall with the bell ringer, it may be said there was evidence which tended to show the engine was dirty, much coal dust lying around, etc. Considerable evidence was offered in respect to a loose rope lying along the hand rail brackets of the engine adjacent to the bell ringer. Appellant's contention is that this rope, a part of the automatic bell ringer equipment, was grasped by Mackin in place of the hand rail thereby plunging him to the ground. Evidence out of which theories were spun, tended to show (a) the morning was misty and (b) the cat walk was slippery; (c) the engine was dirty; (d) there was a possibility that Mackin may have climbed over the engine instead of walking around it; (e) also the developing steam interfered with decedent's vision. These theories were offered pro and con. An inspection of the engine after the accident failed to clarify matters except to reveal a sharp heel print twisted as though perhaps it were made at the time of the fall.

The loose rope concerning the existence and position of which there was little question had not recently become detached from the bell because the bell had been manually operated before the engine reached Freeport. The jury might well have found that the rope had been used on some previous bell repair job and left there. The jury could have found that such a rope had been attached to and usable with a bell ringer, and was a part of the bell ringer equipment.

The governing statute, 45 U.S.C.A., § 51, reads:

"Every * * * railroad * * * shall be liable in damages * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The decisions construing this statute are legion. And decisions elucidating the principle of "proximate cause", or attempting to do so, are without bound. Even a cursory study of them would convince the student of the law of the truth of the statement of Roberts, in the text, "Federal Liabilities of Carriers", Sec. 869,

"No phase of negligence law offers greater resistance to logical treatment than the much discussed question of proximate cause * * *.

"* * * It is not strange that attempts to frame an accurate and comprehensive definition of the term `proximate cause' have not been successful. It has been spoken of as an `efficient' cause, as a cause `without which the injury would not have occurred,' as a `direct' or `dominant' cause."

A study of the decisions and the language of appellate courts is convincing of the conclusion that in no branch of the law is there greater justification for saying "the law is not an exact science" than in the field of proximate cause. Greater accuracy would at times exist if the subject were described as the approximate instead of the proximate cause.

In construing the above-quoted statute, Roberts says:

"* * * it seems clear, in the light of the provisions above abstracted, that the liability statute definitely recognizes the complex causal basis of most injuries, and, in effect, states that if, among the several factors which have combined to produce an injury within the purview of the statute, there shall be found any negligent act or omission on the part of the carrier to which such injury was in part due, then liability for such injury shall fall upon the carrier."

"The statute does not attempt to legislate upon the purely logical problem of determining the cause or causes of injury, but directs its mandate towards the problem of fixing liability for the injury. Logic may conclude that the injury resulted from the negligence of the employer, the employee's own want of care, the default of a stranger to the employment, an act of God, or pure accident, or from a combination of...