King v. Southern Pacific Transp. Co., 85-1666
| Decision Date | 02 September 1988 |
| Docket Number | No. 85-1666,85-1666 |
| Parties | Lester D. KING, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Siegfried Hesse, Berkeley, Cal. (E. Elizabeth Summers, Berkeley, Cal., of counsel, and Frederick L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal. and Arturo G. Ortega, Ortega & Snead, Albuquerque, N.M., were also on the brief), for plaintiff-appellant.
Booker Kelly, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M. (Larry White, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., was also on the brief), for defendant-appellee.
Before HOLLOWAY, Chief Judge, and BARRETT and LOGAN, Circuit Judges.
Plaintiff Lester King is a railroad brakeman for defendant Southern Pacific Transportation Co. (SP). King filed this action against SP under the Federal Employer's Liability Act, 45 U.S.C. Sec. 51-60 (FELA), the Boiler Inspection Act, 45 U.S.C. Sec. 22-34 (BIA), and the Safety Appliance Act, 45 U.S.C. Sec. 1-16 (SAA).
King claims he suffered work-related injuries in two separate accidents, one in 1980 and one in 1984. As to the 1980 accident, King claims the locomotive seat in which he rode violated the BIA because it lacked armrests. Regarding the 1984 accident, King claims that SP violated the SAA because its train on which he was riding made a sudden and unexpected emergency stop, which King claims to have resulted from defective brakes on one of the railroad cars. He claims these alleged defects caused or contributed to his injuries.
The district court granted summary judgment for SP on King's BIA claim regarding the 1980 accident asserted in the original complaint (Count II), and a jury returned a verdict for SP on King's FELA and other claims (Count I of original complaint and other counts of the amended complaint). King appeals from the adverse judgments. We affirm.
On July 27, 1980, King was acting as head brakeman on a coal train operated by SP between Lordsburg, New Mexico, and El Paso, Texas. The train was operating on SP tracks with an SP crew. King was sitting in the brakeman's chair behind the engineer in the lead locomotive, which belonged to the Santa Fe. Under its contract with the union SP was required to provide locomotive brakemen's seats with armrests. However, King's seat in the Santa Fe locomotive lacked armrests.
En route the SP train collided with a cattle truck at a grade crossing. The crew saw the truck move onto the crossing, and King dropped to the floor of the locomotive. The engineer also dropped to the floor after throwing the train into emergency. King alleges that in the ensuing impact, he struck his neck and shoulder on an iron bar and twisted his back, 'popping' it. King was off work for two months but did not seek medical treatment until the fall of 1981. In 1983 King filed this action against SP under the BIA and the FELA for these injuries, claiming the locomotive was 'unsafe' because the brakeman's seat lacked seatbelts and armrests for him to hold.
On January 1, 1984, after this suit was filed concerning the 1980 accident, King was involved in another accident while working as rear brakeman in the caboose of an SP train. The train approached a red stop signal and the engineer, intending to slow the train, applied a low level of air to the train's air brake line. However, instead of gradually slowing down, the train went into a sudden full emergency stop. This reaction is typically caused by a car with defective brakes (known as a "dynamiter" in railroad jargon) somewhere on the train. King claims the sudden impact threw him against the wall of the caboose, injuring his left forearm, neck and back. He was off work for four months after the accident.
King did not attempt to file a supplemental complaint for the 1984 accident until after the court entered a summary judgment for SP with respect to the 1980 grade crossing collision claims. However, the court allowed King to file a supplemental complaint against SP under the FELA and the SAA for the injuries that allegedly resulted from the 1984 emergency stop.
A motion for summary judgment was filed by SP as to both Count I, the FELA claim, and as to Count II, the BIA claim, of the complaint concerning the 1980 grade crossing collision. After review of the motion and King's response, the depositions and materials submitted, the court entered a Memorandum Opinion and Order granting summary judgment for SP as to Count II and denying the motion as to Count I.
The district judge summarized the plaintiff's BIA claim. King contended he would not have suffered the injuries if armrests and a seatbelt had been present on the chair in which he was riding, and King claimed the lack of these devices made the chair unsafe within the meaning of the BIA. King argued that a genuine issue of fact existed whether the locomotive could be operated in a safe condition without such equipment. The court pointed out that SP argued that under applicable safety standards, the only requirement concerning engine seats was that they "be securely mounted and braced." 49 C.F.R. Sec. 229.119 (1980). Since the seat met this requirement, SP contended there was no violation of the BIA and that neither armrests nor seatbelts were parts or appurtenances of the engine in which King was riding so that the BIA was inapplicable.
The court referred to deposition testimony that SP uniformly provides armrests on its locomotives chairs (King deposition at 92) and SP was supposed to provide armrests on brakemen's chairs under its collective bargaining agreement. (See Pl.Exh. 38, p. 76, Sec. D, p 3; King deposition at 90-95; Hanson deposition at 8-9). The contractual agreement since 1938 has required armrests in SP engines. (Hansen deposition at 8).
The district court held that the fact that SP had undertaken to provide armrests on brakemen's chairs in its own engines and had experimented with use of seatbelts on chairs did not establish that engine chairs without such devices are unsafe to operate, nor that they create "unnecessary peril to life or limb" under the BIA. The Secretary of Transportation, who was authorized to promulgate safety rules and regulations, had specifically addressed the subject of chairs in locomotives and had not seen fit to prescribe armrests as necessary to safe operation of locomotives. The court cited Southern Ry. v. Lunsford, 297 U.S. 398, 401-02, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936), and its statements that parts or attachments prescribed by order of the Interstate Commerce Commission are within the BIA, but that mere experimental devices that do not increase the peril but may prove helpful in an emergency, are not. Since the Secretary had addressed cab seats in 49 C.F.R. Sec. 229.119 (1980) and had determined only that they must be securely mounted and braced, and the plaintiff did not allege otherwise, the SP motion for summary judgment on the BIA claim was granted.
With respect to the FELA claim sounding in negligence, the court found that there were material issues of fact and denied summary judgment. A fact question was held to exist whether it was reasonably foreseeable that in the absence of armrests, harm was possible. As to the negligence claim under the FELA, the court found a fact question existed whether SP acted reasonably in allowing an engine on its line that was not equipped with armrests on locomotive chairs, in light of SP's having provided armrests for over 40 years and brakemen's demands for them.
After ruling on SP's motion for summary judgment, the court allowed King to file a supplemental complaint against SP asserting claims under the FELA and the Safety Appliance Act for injuries that allegedly resulted from the 1984 emergency stop. These claims were tried with King's surviving FELA claim arising from the 1980 grade crossing collision. At trial, King abandoned his theory that SP was liable for failing to provide seatbelts, and he only argued that SP was liable for failing to provide armrests and for failing to operate its train in a careful and prudent manner at the time of the 1984 accident.
At the close of all the evidence, King moved for a directed verdict on his claims arising from the 1984 accident. VIII R. at 957. The district court denied this motion and the jury returned a general verdict for SP. King appeals from the adverse judgments.
On appeal, King asserts two main claims of error. First, he says the district court improperly granted summary judgment for SP on his BIA claim arising from the 1980 grade crossing collision, arguing that his locomotive seat was "unsafe" under the BIA even though it met federal regulations. Second, he claims that the district court should have directed a verdict in his favor on his SAA claim arising from the 1984 emergency stop, because there was no evidence to support a verdict in SP's favor. King does not raise any question on appeal about his FELA claims.
The Boiler Inspection Act prohibits railroads from operating any locomotive unless the "locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb...." 45 U.S.C. Sec. 23. The BIA also prohibits the operation of any locomotive that has not passed certain tests and inspections prescribed in the pertinent rules and regulations. Id. 1 Under the BIA the Supreme Court has held that "[w]hatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of [the Secretary], are within the statute." Southern Ry. v. Lunsford, ...
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