Hampton v. Des Moines & Cent. IR Co.

• Decision Date: 15 June 1933
• Docket Number: No. 9693.,9693.
• Parties: HAMPTON v. DES MOINES & CENT. I. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 899 (1933)

HAMPTON v. DES MOINES & CENT. I. R. CO.

No. 9693.

Circuit Court of Appeals, Eighth Circuit.

June 15, 1933.

Ernest A. Michel, of Minneapolis, Minn. (James E. O'Brien, Tom Davis, and Carl L. Yaeger, all of Minneapolis, Minn., on the brief), for appellant.

A. B. Howland, of Des Moines, Iowa (Corwin R. Bennett, of Des Moines, Iowa, on the brief), for appellee.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

The parties will be referred to as in the court below, the appellant as plaintiff, the appellee as defendant. From a judgment in favor of the defendant entered upon a verdict directed by the court at the close of the plaintiff's case in an action to recover for personal injuries, this appeal is taken. It is undisputed that the plaintiff was an employee of the defendant and that, while engaged as a brakeman in coupling an engine to a car in the defendant's yards at Des Moines, Iowa, about noon on July 25, 1932, his left foot was so crushed between the couplers that it had to be amputated. He claims that his injuries were due to a defective coupler on the engine, and bases his right to recover upon this alleged violation of the Safety Appliance Act, title 45, U. S. C., § 2 (45 USCA § 2). The defendant denies any violation of the act and asserts that the plaintiff was guilty of contributory negligence.

It is conceded that the defendant is a common carrier engaged both in interstate and intrastate commerce, and is therefore subject to the Safety Appliance Act (45 USCA § 1 et seq.), and it is further conceded that, since the plaintiff was not engaged in interstate commerce at the time the accident occurred, contributory negligence is a complete defense.

There are but two questions submitted for our determination:

(1) At the close of the plaintiff's case, was there sufficient evidence of a violation by the defendant of the Safety Appliance Act to take that question to the jury?

(2) Did the plaintiffs evidence establish his contributory negligence as a matter of law?

It is elementary that upon the consideration of the ruling of the lower court granting the motion of the defendant for a directed verdict the plaintiff is entitled to have his evidence viewed in its most favorable aspect. Keeping that in mind, the facts which it tended to establish were substantially as follows: The plaintiff had been employed by the defendant for some eighteen years, was an experienced brakeman, and had coupled and uncoupled thousands of cars. On the day of the accident he was head brakeman "following the engine." On a stretch of straight track was a freight car to which it was intended to couple the engine. The engine was approaching the car from a point some three hundred feet away; the plaintiff was on the front footboard of the engine on the right-hand side facing the car and directing the movement of the engine. As it neared the car, he gave a "slow" signal, which was obeyed by the engineer, and the engine then proceeded at a speed of four or five miles an hour. When it was within two or three feet of the car, the plaintiff noticed that the drawbar of the engine was four or five inches out of line laterally toward him. He knew that in that position the coupling would not "make". In order to align the drawbar, he placed his left foot upon it "back in behind the knuckle on the big end" of the drawbar and shoved. It did not give at first. He shoved again. It moved suddenly into position; his foot slipped, passed in front of the knuckle, and was caught between the couplers as the coupling was made. He then pulled the pin and signalled the engineer to go ahead, and thus released his foot. He had been working on the engine since about 5:30 in the morning, and had not had any difficulty with the drawbar before, although he had used it both in coupling and uncoupling. Drawbars necessarily have some lateral play, and the customary play of an inch or a little more does not interfere with their coupling upon impact. A drawbar which is four or five inches out of line will not couple upon impact, but must be aligned before a coupling can be made. The alignment of such drawbars by brakemen is ordinarily accomplished by the method employed by the plaintiff. In order to make the adjustment of such drawbars, it is necessary for the brakemen to go between the ends of the cars.

The Safety Appliance Act, title 45, U. S. C., § 2 (45 USCA § 2), requires couplers coupling automatically by impact and which can be coupled and uncoupled without the necessity of men going between the ends of the cars. Johnson v. Southern Pacific Co., 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363; San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, 36 S. Ct. 626, 60 L. Ed. 1110.

If the drawbar in question here was four or five inches out of line, as testified to by the plaintiff, so that he was required to move it four or five inches from its original position in order to make the coupling, it was not such a coupler as the law required. Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 584, 585, 31 S. Ct. 617, 55 L. Ed. 590; San Antonio & A. P. Ry. Co. v. Wagner, supra, 241 U. S. 483, 484, 36 S. Ct. 626, 60 L. Ed. 1110; Atlantic City R. Co. v. Parker, 242 U. S. 56, 37 S. Ct. 69, 61 L. Ed. 150. The fact that the coupling was made after the plaintiff aligned the drawbar does not disprove his statement that it would not have been made by impact had he not aligned it. We think that the testimony of the plaintiff and the testimony of his expert that a drawbar four or five inches out of line laterally will not couple upon impact constituted substantial evidence that the coupler was defective, and made that question one of fact for the jury.

On the question of contributory negligence, the defendant contends that, when the plaintiff observed that the drawbar was out of alignment, he had a safe course which he might have pursued; he could have signalled the engineer to stop, and then have made the adjustment; instead, he chose the more dangerous course of attempting to align the...