Grogg v. Missouri Pacific R. Co.

• Decision Date: 26 February 1988
• Docket Number: No. 87-1002,87-1002
• Citation: 841 F.2d 210
• Parties: 24 Fed. R. Evid. Serv. 928 Connie M. GROGG, Appellant, v. MISSOURI PACIFIC RAILROAD CO., a corporation; Brant Lee Bobbitt; Coca-Cola Bottling Co. of Fort Smith, A Limited Partnership, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 210

841 F.2d 210

24 Fed. R. Evid. Serv. 928

Connie M. GROGG, Appellant, v. MISSOURI PACIFIC RAILROAD CO., a corporation; Brant Lee

Bobbitt; Coca-Cola Bottling Co. of Fort Smith, A

Limited Partnership, Appellees.

No. 87-1002.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1987.

Decided Feb. 26, 1988.

Keith Queensen, Minneapolis, Minn., for appellant.

Michael G. Thompson, Little Rock, Ark., for appellees.

Before FAGG, Circuit Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

FAGG, Circuit Judge.

Connie M. Grogg brought this action under federal and state law against her employer, Missouri Pacific Railroad Co. (Missouri Pacific), Coca-Cola Bottling Co. of Fort Smith (Coca-Cola), and one of Coca-Cola's employees, Brant Lee Bobbitt, in connection with two railroad accidents in which Grogg was injured. In the first accident on February 24, 1984, Grogg was an engineer on a Missouri Pacific train that collided at a crossing in Sallisaw, Oklahoma, with a Coca-Cola semitrailer truck driven by Bobbitt. The second accident took place on March 6, 1984, when the train on which Grogg was an engineer went into an emergency stop near Cooksen, Oklahoma, because an air brake hose had separated from one of the cars on the train.

The district court directed a verdict in favor of Missouri Pacific on one of Grogg's claims related to the brake accident. The claim was brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60, and was based on an asserted violation of the Federal Safety Appliance Acts (FSAA), 45 U.S.C. Secs. 1-16. The jury rendered a verdict in favor of each of the defendants on Grogg's remaining claims. We affirm in part, reverse in part, and remand for a trial on Grogg's FSAA-based claim.

Grogg first argues the district court committed error in directing a verdict against her on the FSAA claim. Our standard of review of the grant of a directed verdict is the same as the standard applied by the district court in the first instance. Smith v. Monsanto Chem. Co., 770 F.2d 719, 722 (8th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986). Under this standard, we assume the evidence supporting Grogg's position is true, and we give her the benefit of all inferences reasonably drawn from that evidence. See id. Viewed in this way, the district court correctly took the issue from the jury only if " 'all the evidence points one way and is susceptible of no reasonable inferences sustaining [Grogg's] position.' " Dale v. Janklow, 828 F.2d 481, 484 (8th Cir.1987) (quoting Bell v. Gas Serv. Co., 778 F.2d 512, 514 (8th Cir.1985)). Unlike other rulings by the district court, the "grant of a directed verdict is not accorded the usual presumption in favor of correctness." Id.

The FSAA do not by their terms confer a right of action on injured parties. See Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 1033, 93 L.Ed. 1282 (1949). Rather, if Grogg proves a violation of the FSAA, she may recover under the FELA without further proof of negligence by Missouri Pacific. See id. at 189, 69 S.Ct. at 1034. "In short, the [FSAA] provide the basis for the claim, and the FELA provides the remedy." Beissel v. Pittsburgh & Lake Erie R.R., 801 F.2d 143, 145 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1296, 94 L.Ed.2d 152 (1987).

The FSAA impose absolute duties on railroads to provide required safety equipment on their trains, id., including safe power braking systems, see, e.g., 45 U.S.C. Secs. 1, 3, 9. This "requirement that a train shall be equipped with power brakes necessarily contemplates that they shall be maintained for use." Fairport, Painesville & E.R.R. v. Meredith, 292 U.S. 589, 593, 54 S.Ct. 826, 827, 78 L.Ed. 1446 (1934). Grogg's FSAA claim is based on her contention Missouri Pacific violated the FSAA by failing to equip its train with brake equipment that was maintained in safe and operative condition. The district court directed a verdict for Missouri Pacific on this claim after concluding Grogg "must show a defect" in the air hose that caused the brake accident.

To recover for a violation of the FSAA Grogg had to show: (1) the statute was violated; and (2) the violation was "a causative factor contributing in whole or in part to the accident" that caused her injuries. Beimert v. Burlington N., Inc., 726 F.2d 412, 414-15 (8th Cir.) (per curiam) (footnote omitted), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 365 (1984). She was not required to prove Missouri Pacific was negligent, Coleman v. Burlington N., Inc., 681 F.2d 542, 544 (8th Cir.1982), or that a specific air brake hose was defective, see id. (citing Carter v. Atlanta & St. Andrews Bay Ry., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949)); see also Maldonado v. Missouri Pac. Ry., 798 F.2d 764, 767 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1571, 94 L.Ed.2d 762 (1987). To prove the equipment on Missouri Pacific's train was in violation of the FSAA, Grogg could show either evidence of

"some particular defect, or the same inefficiency may be established by showing a failure to function, when operated with due care, in the normal, natural, and usual manner."

"Proof of an actual break or visible defect * * * is not a prerequisite to a finding that the statute has been violated. Where a jury finds that there is a violation, it will be sustained, if there is proof that the mechanism failed to work efficiently and properly * * *. The test in fact is the performance of the appliance."

Myers v. Reading Co., 331 U.S. 477, 483, 67 S.Ct. 1334, 1338, 91 L.Ed. 1615 (1947) (quoted citations omitted).

Grogg's attack on the directed verdict is based on her contention that because she needed to show only that the equipment failed to work properly in the instance that resulted in her injury, rather than the existence of a specific defect, the proof she offered entitled her to a jury submission on the FSAA claim. In support of Grogg's position, the record shows the train braked unexpectedly when an air hose failed to remain attached to its train car, causing the air braking system suddenly to lose pressure and go into an emergency stop. Although the cause of the air hose failure was not conclusively shown and the missing hose was never examined or produced at trial, this hose was designed under normal operating conditions to remain attached in order to maintain sufficient air pressure for the train to be slowed or stopped on command. The head brakeman testified that "when we walked the train [after the emergency stop] we found an air hose had been busted. * * * It had been torn completely off the car." Based on his experience, the brakeman concluded a piece of track, over which approximately thirty other cars had already passed without difficulty, probably caught the air hose and pulled it loose. When asked whether the air hose should "come off like that," the brakeman replied, "No, sir."

These facts would allow the jury to find the air hose failed to function "in the normal, natural, and usual manner," Myers, 331 U.S. at 483, 67 S.Ct. at 1338, because it separated from the car at a time when it should not have done so. Even under Missouri Pacific's highly optimistic version of the facts, an air hose that cannot safely negotiate tracks encountered during routine train operation could demonstrate a failure to perform up to FSAA standards, and "a failure of equipment to perform as required by the [FSAA] is in itself an actionable wrong." O'Donnell v. Elgin, Joliet & E. Ry., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949); see also Affolder v. New York, Chicago & St. Louis R.R., 339 U.S. 96, 99, 70 S.Ct. 509, 510, 94 L.Ed. 683 (1950); Erskine v. Consolidated Rail Corp., 814 F.2d 266, 270-71 (6th Cir.1987) (citing Coray v. Southern Pac. Co., 335 U.S. 520, 522-23, 69 S.Ct. 275, 276, 93 L.Ed. 208 (1949)). Missouri Pacific's theories concerning more remote causes of the hose failure are theories the jury could choose to believe or not, and viewing the evidence as we must in Grogg's favor, these theories are more appropriately presented in closing argument.

Missouri Pacific does not dispute...