Garcia v. Burlington Northern R. Co.

• Decision Date: 22 April 1987
• Docket Number: No. 84-1318,84-1318
• Citation: 818 F.2d 713
• Parties: Joe E. GARCIA, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant, and Association of American Railroads and National Association of Railroad Trial Counsel, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 713

818 F.2d 713

Joe E. GARCIA, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant, and Association of American Railroads and National Association

of Railroad Trial Counsel, Amici Curiae.

No. 84-1318.

United States Court of Appeals, Tenth Circuit.

April 22, 1987.

Richard D. Hall (C. Willing Browne and Alan Epstein, with him on the briefs) of Hall & Evans, Denver, Colo., for defendant-appellant.

Michael L. Weiner of DeParcq, Perl, Hunegs, Rudquist & Koenig, P.A., Minneapolis, Minn. (Douglas John Traeger, Denver, Colo., and Norman Perl of DeParcq, Perl, Hunegs, Rudquist & Koenig, P.A., Minneapolis, Minn., with him on the briefs), for plaintiff-appellee.

Peter J. Crouse and Walter J. Downing of Grant, McHendrie, Haines and Crouse, P.C., Denver, Colo., on the brief for Ass'n of American Railroads, amicus curiae.

Albert J. Givray and Carol R. Goforth of Doerner, Stuart, Saunders, Daniel & Anderson, Tulsa, Okl., on the brief, for National Association of Railroad Trial Counsel, amicus curiae.

Before McKAY, SETH and TIMBERS ^*, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff, Joe E. Garcia, was an employee of defendant, Burlington Northern Railroad Company. He was seriously injured when an Electromatic Tamper backed over his left leg. The leg was amputated, and plaintiff sought recovery in a two-count complaint filed against defendant. Count one alleged that defendant was negligent under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60 (1982) (FELA), and count two, based on the same facts, sought recovery for violations of the Boiler Inspection Act, 45 U.S.C. Secs. 22-34 (1982) (BIA). Both parties agree that while plaintiff's contributory negligence would reduce his recovery under FELA, it would not affect his recovery under the BIA.

After presentation of the evidence, the trial court submitted the matter to a jury. The court instructed the jury that the Tamper was a locomotive for purposes of the BIA and asked them to determine whether defendant, plaintiff or both were negligent. To assist the jury, the court submitted special interrogatories relating to plaintiff's claim of negligence and defendant's claim of contributory negligence. The jury returned a verdict for plaintiff on both counts and found that the damages were $2,000,000. However, as to count one, the jury found that plaintiff's contributory negligence caused twenty-five percent of his damages. The court stated that plaintiff could not receive more than one recovery and entered judgment for plaintiff and against defendant in the amount of $2,000,000 plus interest from the date of the judgment. This judgment was dated February 29, 1984, nunc pro tunc to February 24, 1984. Neither party filed any post-judgment motion, and defendant filed its notice of appeal on March 5, 1984. However, on November 29, 1984, the trial court issued a memorandum opinion and order stating that plaintiff was entitled to prejudgment interest. The court also issued an amended judgment that granted plaintiff interest on the $2,000,000 recovery from July 13, 1982, the date of the accident. Upon appeal, defendant contends that plaintiff is not entitled to recover under the BIA or to receive prejudgment interest.

I. Recovery under the Boiler Inspection Act

Defendant first argues that it is not subject to the BIA because the Electromatic Tamper is not a "locomotive." The trial court denied defendant's motion for summary judgment on this issue and instructed the jury that the Tamper is a locomotive for purposes of the BIA. Both parties agree that if the Tamper is not a locomotive, defendant is not subject to the BIA, and plaintiff can recover only on his FELA claim.

The BIA was enacted in 1911, when railroads used steam locomotives. The boilers in steam locomotives could explode violently and cause serious damages to persons and property. Consequently, railroads were subjected to strict liability for violations of the BIA. Even more important to plaintiff, contributory negligence was not a defense and did not reduce a plaintiff's recovery.

When railroads began using other locomotives, courts extended coverage of the BIA. Essentially, they decided that since the BIA was a remedial statute, it should be construed liberally to protect railroad workers against harm caused by defective railroad equipment. United States v. Fort Worth & D. Cent. Ry., 21 F.Supp. 916, 917 (N.D.Tex.1937); Duchsherer v. Northern Pac. Ry., 4 Wash.App. 291, 293, 481 P.2d 929, 932 (1971). As a result, numerous vehicles were labeled locomotives under the BIA. However, courts have never said that all railroad vehicles will be locomotives; rather, they have consistently held that a vehicle will be a locomotive only if it is used as a locomotive. Baltimore & O. Ry. v. Jackson, 353 U.S. 325, 329, 77 S.Ct. 842, 845, 1 L.Ed.2d 862 (1957); Hoffman v. New York, N.H. & H. R.R., 74 F.2d 227, 232 (2d Cir.1934); Duchsherer, 4 Wash.App. at 293, 481 P.2d at 932. A study of the cases reveals two requirements: first, the vehicle must operate on railroad tracks; and second, it must perform a locomotive function.

Numerous courts have held that vehicles that push or pull railroad cars along railroad tracks are locomotives. E.g., Hoffman, 74 F.2d at 232. Even if the pushing and pulling is only along the tracks within the railroad's own yard, the vehicle is acting as a locomotive and, thus, is a locomotive under the BIA. Atchison, T. & S.F. Ry. v. United States, 403 F.2d 211, 212-13 (10th Cir.1968). In Mazzucola v. Pennsylvania R.R., 281 F.2d 267 (3d Cir.1960), the court further defined this requirement in relation to a caterpillar that was used to push and pull railroad cars to and from a loading dock. The court stated that, because the caterpillar "runs on its own tracks, not those of the railroad," it is not a locomotive. Id. at 268-69. Thus, a vehicle can be a locomotive only if it operates on railroad tracks. The Tamper meets this requirement because it operates along railroad tracks, both while moving to and from the job site and while in operation at the job site.

The requirement that vehicles perform locomotive functions has been liberally construed. As noted in Atchison, even if the vehicle only operates within the railroad's own yard, it can be a locomotive. 403 F.2d at 212-13. Furthermore, a crane used to unload boulders at a railroad construction site is a locomotive if it pushes or pulls cars loaded with boulders to and from the construction location. Fort Worth, 21 F.Supp. at 918-19. A motor car becomes a locomotive if it is used to push or pull any other car along the railroad tracks. Duchsherer, 4 Wash.App. at 293, 481 P.2d 932. In fact, in Jackson, the Supreme Court was faced with a motor car that pulled only a hand car. The hand car was used to carry material, tools and equipment to the site where workers were repairing railroad tracks. However, since the motor car pulled another car, the Court found that it was subject to acts governing locomotives. 353 U.S. at 329-30, 77 S.Ct. at 845. Thus, one locomotive function is pushing and pulling cars along railroad tracks.

In arguing that the Tamper is a locomotive, plaintiff focuses on the pushing and pulling functions of the Tamper. He claims these functions are the same as those performed by the crane in Fort Worth or the motor car in Jackson. Thus, our decision turns on whether the pushing and pulling done by the Tamper is the same as the pushing and pulling done by vehicles that have been considered locomotives.

The Tamper is a vehicle specifically designed to align tracks. When performing this function, the Tamper uses two metal apparatus: a projector buggy that is pushed along the track and a receiver buggy permanently installed on the rear of the Tamper. The projector buggy consists of a welded metal frame attached to four small wheels. Three light projectors are mounted on the frame and direct beams of light toward the Tamper. The receiver buggy, which can be lowered to the tracks, is actually a single metal "utility" bar with two small wheels.

When the Tamper is aligning tracks, the projector buggy is placed from twenty-five to one hundred feet in front of the Tamper. Connecting rods, called spacer buggies, establish and maintain a constant distance between the projector buggy and the Tamper. If the tracks are properly aligned, beams of light from the projectors are intercepted by a shadow box mounted on the Tamper. However, if there is any misalignment--either because the tracks are not vertically or not laterally aligned--the light reaches one or more of three receivers. One receiver is mounted on the receiver buggy and two receivers are mounted on a metal bar directly behind the cab of the Tamper. Each receiver contains an infrared sensitive photocell and, when light from the projectors reaches any receiver, a bell sounds to notify the operator that the track is not properly aligned.

If there is misalignment, the operator activates the Tamper's jacking function. Rail clamps reach down to seize the track and automatically activated hydraulic jacks raise the track until it is vertically adjusted. The jacking function then terminates and the aligning function positions the track laterally. When light from the projectors no longer reaches the receivers, the tracks are properly aligned. Meanwhile, the tamping function consolidates ballast under the tracks to maintain their proper position. When this operation is completed, the clamps release the track and the Tamper continues down the railroad line, repeating this sequence of functions.

At the end of its operations, the Tamper is prepared for its travel back to the railroad station. The receiver buggy is moved to a raised position on the back of the Tamper, while the projector buggy is placed on its own bracket which is mounted on the front of the Tamper. While traveling to and from the job site, the Tamper and its two buggies are a compact,...