Finley v. Southern Pac. Co.

• Decision Date: 04 April 1960
• Citation: 3 Cal.Rptr. 895,179 Cal.App.2d 424
• Court: California Court of Appeals Court of Appeals
• Parties: Ronald FINLEY, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 24075.

Page 895

3 Cal.Rptr. 895

179 Cal.App.2d 424

Ronald FINLEY, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 24075.

District Court of Appeal, Second District, Division 1, California.

April 4, 1960.

Bodle, Fogel & Warren, Daniel Fogel, Charles H. Warren, Los Angeles, for appellant.

E. D. Yeomans, Edward A. Hume, William E. Still, John H. Gordon, Los Angeles, for respondent.

LILLIE, Justice.

On the theory of negligence under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and a violation of the Safety Appliance Act (Automatic Couplers Act), 45 U.S.C.A. § 1 et seq., plaintiff sued defendant Southern Pacific Company, his employer, for damages for injuries sustained during switching operations in defendant's yard. It is from a judgment against him entered on a jury verdict plaintiff appeals. Among the issues raised for our consideration is the trial court's error in giving an improper and prejudicial instruction relating to the Automatic Couplers Act.

Only two witnesses testified to the circumstances of plaintiff's fall--plaintiff and defendant's crew foreman, Richard Hatch.

Plaintiff, a switchman, was working on a train consisting of an engine and forty cars situated on the lead track. He had been instructed to ride a cut of five cars from the lead train onto track 8 and couple onto three cars already standing there, await two more cuts--one of six and the other of four cars--and after coupling, to secure them. Plaintiff rode the five cars onto track 8, coupled causing an impact, released the brake, and descended to the ground where he walked to the front of the eight cars to adjust the brakes and await the additional cuts. As he did so, another impact occurred causing to roll down the track the eight cars which plaintiff boarded. He stopped them and remained standing on the catwalk on top of the middle car awaiting the second cut. Another impact of less force occurred, moving the cars slowly; and thinking this to be the second cut, plaintiff controlled the brake to permit them to roll down the track. Thereupon 'a terrific jolt' hit the cars from behind, causing the one on which plaintiff was standing to lurch, throwing him to the ground.

Hatch, the crew foreman, testified that on the end of each freight car is a coupler and each coupler has a moving part known as a knuckle; that cars are coupled by causing them to come into contact with each other with at least one knuckle open; and that if there is a coupling failure the contact of the cars will cause a bump. He further testified that after he sent the first five-car cut to plaintiff, he personally disengaged the six-car cut from the train and sent it down track 8 to couple onto the rear car of the 8 cars then standing on the track. The knuckle of the coupler of the lead car was open and the cars were moving three or four miles per hour, a speed sufficient to enable the cut to couple onto the eight cars already on the track. He heard the impact, but because of the dense fog was unable to see if coupling occurred. However, when the six-car cut came to a halt, he noticed the end car fouled the track preventing other moves and, to move what he then believed to be the fourteen cars further up the track to get the end car out of the way, and using it as a ramrod, bumped the end car on track 8 with the train then consisting of twenty-five cars. He heard another impact down the yard, saw a light come off the top of a box car and went down to investigate. Plaintiff was lying on the ground. Hatch then learned for the first time that the six-car cut had not coupled. He found the knuckle of the coupler of the lead car of the six-car cut closed.

At the request of plaintiff, the trial court read to the jury numerous instructions pertaining to the Safety Appliance Act. The jury was properly instructed that a coupler, to comply with the Act must be one which, when operated in the manner intended, performs its functions under all ordinary conditions; that it is unlawful for a railroad company to use on its lines any car not equipped with couplers which couple automatically by impact; and that it was the absolute duty of defendant to equip the car in question with a coupler that would work efficiently at all times. The court further instructed that the test for determining whether there had been a violation of the Automatic Couplers Act is--'Was there a fair trial, that is: was there an honest effort to attempt a coupling by impact, was it attempted in the ordinary, reasonable, customary manner'; that if there was not a fair test given and the coupling failed to operate, there was no violation of the Act--if there was a fair trial and the coupler did not operate at the time and place of the accident and its failure proximately caused the injuries in question, a violation of the Act occurred; and that liability for failure to comply is absolute and not dependent upon lack of reasonable care--the violation is itself negligence. The propriety of none of these instructions has been questioned.

However, the last instruction given in the series, submitted by defendant and of which plaintiff complains, reads as follows: 'Under the Safety Appliance Act the failure of couplers to make a joint, is not, in itself, a violation of the Federal Safety Appliance Act. If you find that it is a fact that couplers in perfect condition will, under certain circumstances, fail to make a joint, and if you further find that the defendant railway company equipped its car with the type of coupler required by the Interstate Commerce Commission, and that it was not defective, then your verdict must be for the defendant railway company and against plaintiff on his cause of action under the Safety Appliance Act.' Appellant contends that this instruction is improper and prejudicial in that it contains an erroneous statement of the law, constitutes a formula for verdict, and refers to matters concerning which no evidence appears in the record.

The Automatic Couplers Act makes it unlawful for any railroad company, such as respondent, to use on its lines any car not equipped with 'couplers coupling automatically by impact' (Section 2, Safety Appliance Act, 45 U.S.C.A. § 2). The obvious purpose of this statutory requirement is the prevention of exposure of railroad employees to the risk and danger formerly incident to working between cars to effect coupling. The Supreme Court 'early swept all issues of negligence out of cases under the Safety Appliance Act' and 'held that a failure of equipment to perform as required by the * * * Act is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability--a liability that cannot be escaped by proof of care or diligence (Citations)' (O'Donnell v. Elgin, Joliet & E. R. Co., 1949, 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187). '(T)he duty under the Acts is not based on the negligence of the carrier but is an absolute one requiring performance 'on the occasion in question"; and no 'question regarding the normal efficiency of the couplers is involved in an action under the Safety Appliance Acts' (Affolder v. New York, C. & St. L. R. Co., 1950, 339 U.S. 96, 98, 70 S.Ct. 509, 510, 94 L.Ed. 683). As well settled is the rule that 'the absence of a 'defect' [in a coupler] cannot aid the railroad if the coupler was properly set and failed to couple on the occasion in question'; nor is the fact that the coupler functioned properly on other occasions material (Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236). Neither is it any defense 'that too much was demanded of it (the coupler)' or 'that while the coupler broke it had been properly manufactured, diligently inspected and showed no visible defects' (O'Donnell v. Elgin, Joliet & E. R. Co., 1949, 338 U.S. 384, 393, 70 S.Ct. 200, 206, 94 L.Ed. 187).

The defenses open to the railroad under the Automatic Couplers Act are limited, since they cannot be based on negligence; but one of the few available arises out of a failure of the device to couple on impact because the coupler had not been properly opened (Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236; Affolder v. New York, C. & St. L. R. Co., 1950, 339 U.S. 96, 99, 70 S.Ct. 509, 94 L.Ed. 683; Hallada v. Great Northern Railway, 244 Minn. 81, 69 N.W.2d 673, certiorari denied 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773); and 'whether, after the couplers were placed in their open or proper position, they failed to couple automatically on impact' is a jury question (Affolder v. New York, C. & St. L. R. Co., supra, 339 U.S. 99-100, 70 S.Ct. 511), which goes directly to whether a fair trial had been given, which trial requires that at least one of the couplers be in an open position and that they be brought together with sufficient impact to effect coupling.

Another defense suggested by the court in the O'Donnell case, supra, might arise out of certain special circumstances not here material, such as the failure of the coupler to hold because it was 'broken or released through intervening and independent causes other than its inadequacy or defectiveness such, for example, as the work of a saboteur' (O'Donnell v. Elgin, Joliet & E. R. Co., 1949, 338 U.S. 384, at page 394, 70 S.Ct. 200, at page 206, footnote 7); but the record before us is silent concerning any circumstances justifying such a defense. However, it does show the existence of a factual issue relating to whether the coupler was open before the impact. Although the conflict does not appear to be a substantial one due to Hatch's positive testimony that he personally opened the coupler immediately before the car was sent down track 8, nevertheless Hatch's further testimony that immediately after plaintiff's fall he looked at the couplers on both cars and found them closed, might warrant an inference to the...