Kaminski v. Chi., M., St. P. & P. R. Co.
| Decision Date | 06 June 1930 |
| Docket Number | No. 27897-27906.,27897-27906. |
| Parties | KAMINSKI v. CHICAGO, M., ST. P. & P. R. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dakota County; Chas. P. Hall, Judge.
Action by Edward Kaminski against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. There was a verdict for plaintiff, and the court denied defendant's motion for judgment notwithstanding the verdict and plaintiff's motion for new trial, and entered judgment for plaintiff. Defendant appealed from the judgment, and, from the order denying his motion for new trial, plaintiff cross-appeals.
Reversed and rendered on defendant's appeal, and order denying new trial affirmed.
Syllabus by the Court.
The Federal Safety Appliance Act (45 USCA § 1 et seq.) does not apply where a defective car, which has been withdrawn from service and taken to the point where it is to be repaired, is subsequently moved for convenience in making the repairs.
Switchmen moving defective cars in a repair yard assume the risk of handling them in their defective condition. Tautges, Wilder & McDonald, of Minneapolis, for plaintiff.
F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis (W. H. & H. W. Gillitt, of Hastings, of counsel), for defendant.
Plaintiff recovered a verdict for personal injuries. Defendant made a motion for judgment notwithstanding the verdict. Plaintiff made a motion for a new trial. Both motions were denied and judgment was entered. Defendant appealed from the judgment. Plaintiff appealed from the order denying his motion for a new trial. The question presented on plaintiff's appeal is whether the court erred in instructing the jury that the Federal Safety Appliance Act (45 USCA § 1 et seq.) did not apply in this case.
The accident happened in what is known as the heavy repair yard of defendant in the city of Milwaukee, Wis. This is the yard to which cars needing extensive repairs are taken, and is used only for making repairs. It is not directly connected with any main line. Cars on a main line can reach it only by being first taken to another yard and then transferred from that yard to this. Cars received at this yard are first placed on a track designated as track 26, where they are inspected and the repairs to be made are noted. They are then transferred to a track termed a stripping track, where defective parts are removed. They are then transferred to another track where a particular part of the repair work is done by the set of repairmen at that track. They are then transferred to another track where another particular part of the repair work is done by the set of repairmen at that track; and so on until the repairs are completed. The cars are transferred from one track to another by a switching crew consisting of an engineer, fireman, conductor or foreman, and two brakemen or switchmen. Plaintiff was the rear brakeman or fieldman of this crew. The repairmen worked in the yard in the daytime, and for that reason the switching was done at night.
The purpose of the movement in which the accident happened was to take five box cars from track 14 and place the rear car and two others on track 17. The cars were standing a few feet apart. The engine was backed from the lead track onto track 14 and coupled to the first car, and couplings were then made with the other cars. Plaintiff attended to the making of these couplings. When they were completed he was standing on the right-hand side of the rear car. He signalled the engineer to go ahead. As the cars began to move, he put his left foot in the stirrup near the rear end of the rear car, and, grasping the grabiron with his left hand, attempted to pull himself up to the side of the car, intending to ride to the switch. The grabiron came off, and he fell backward to the ground, twisting and injuring his right knee.
On the preceding night this crew had moved this car from the stripping track to track 14. On the stripping track, the roof and floor of the car had been removed, and also the front half of the side wall on the side toward plaintiff at the time of the accident. The rear part of this side wall still remained, and the stirrup was still in place. The grabirons are fastened to the side of a car by bolts which pass through the wall of the car and through the ends of the grabiron. The heads of the bolts are on the inside of the car and the nuts on the outside of the grabiron. As the grabiron in question was to be removed, the nuts had been burned off with an acetylene torch, and it simply rested on the ends of the bolts with nothing to hold it in position. When grabirons were to be removed or the bolts holding them in place were to be taken out, the nuts were burned off in this manner, and usually the grabirons either fell off or were taken off at the same time. Occasionally a grabiron was left resting on the ends of the bolts as in the present case. Plaintiff knew that the repairmen burned off the nuts in this manner, but says that he had never seen a grabiron left in place after the nuts had been burned off.
Plaintiff relies upon Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874, as sustaining his contention that the facts bring the case within the Federal Safety Appliance Act. In that case the switching crew of which Rigsby was a member were engaged in moving ‘bad order’ cars from a spur track on one side of the main line to the shops on the other side of the main line. Three cars were hauled from the spur onto the main line where they were to remain while the crew went back for others. Rigsby rode on the top of one of these cars and set the brakes to hold them on the main line. While descending from the car, he fell, owing to a defective grabiron, and was injured. He was held to be within the protection of the Safety Appliance Act. The court cites and follows Southern R. Co. v. United States, 222 U. S. 20, 32 S. Ct. 2, 4, 56 L. Ed. 72, in which it was held that the statute as amended ‘is intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce.’ It also cites Great Northern R. Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 125, 60 L. Ed. 322, in which the switching crew were engaged in breaking up a train, and at the time of the accident were moving three cars, one of which had a defective coupler and was marked for repairs and was to be switched to a repair track. Otos was injured while uncoupling this car from another loaded car. The court held that the Safety Appliance Act applied, and said:
‘The supplementary act of April 14, 1910, chap. 160, § 4, 36 Stat. at L. 299, Comp. Stat. 1913, § 8621 [45 USCA § 13], relieves the carrier from the statutory penalties while the car is being hauled to the nearest available point where it can be repaired, but expressly provides that it shall not be construed to relieve from liability for injury to an employee in connection with the hauling of the car.’
We understand these cases to hold that, although a car with defective appliances is being moved for the purpose of taking it out of service and placing it at the point where it is to be repaired, it is within the operation of the Safety Appliance Act during such movement. But we have been cited to no case and know of none which goes to the extent of holding that a car with defective appliances which has been taken out of service and has been placed on a repair track to be repaired in a yard used exclusively for the purpose of making repairs, and which is actually in process of being repaired, is still within the operation of the Safety Appliance Act.
In Baltimore & O. R. Co. v. Hooven (C. C. A.) 297 F. 919, 922, a workman was injured because of an unsafe running board and grabiron on an engine which at the time had been temporarily withdrawn from service and was undergoing minor repairs in a roundhouse. The court pointed out the distinction between the statutory test of liability under the Employers' Liability Act and the statutory test under the Safety Appliance Act, and said:
‘In actions under the Safety Appliance Act the statutory criterion is whether the car is ‘in use’ ‘on its line,’ within the true purpose and scope of the act.'
After observing that the Safety Appliance Act forbids the ‘use’ or ‘hauling on its line’ of cars with defective equipment and requires a high degree of diligence in discovering and repairing defects, the court said:
After referring to the statute and to the fact that under it liability attached during the time that the car was being hauled from the point where the defect was discovered to the point where it was to be repaired, the court said:
‘In a number of cases, where the carrier has been held liable for injuries caused proximately by the defective appliances of a car withdrawn from service, the liability has been sustained on the theory that the injury occurred during the time when the defective car was being hauled to the nearest available point for repairs, or in connection with such moving or hauling.’
The court cited the Otos Case and the Rigsby Case, and, after making some observations as to when the movement to the place of repair should be deemed to have reached the point where the statute no longer applied, said:
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