Lisek v. Norfolk and Western Ry. Co., 93-2785

• Decision Date: 24 August 1994
• Docket Number: No. 93-2785,93-2785
• Parties: Walter F. LISEK, Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 823

30 F.3d 823

Walter F. LISEK, Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.

No. 93-2785.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1994.

Decided July 14, 1994.

Rehearing Denied Aug. 24, 1994.

Steven G. Bailey (argued), Eric D. Jackstadt, Callis Law Firm, Granite City, IL, for plaintiff-appellant.

Evan B. Karnes, II (argued), Susan Davis McGarry, Law Offices of Evan B. Karnes II & Associates, Chicago, IL, for defendant-appellee.

Before BAUER, ESCHBACH and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

After being injured while performing his duties as a switchman for Norfolk and Western Railway Company ("N & W"), Walter Lisek sued the company under the Federal Safety Appliance Act ("FSAA"), 45 U.S.C. Secs. 2-43a, and the Federal Employers Liability Act ("FELA"), 45 U.S.C. Secs. 51-60. Finding that even with all inferences in his favor Lisek had failed to establish a violation of either act, the district court granted N & W's motion for summary judgment. Lisek appeals, and we affirm.

I. Background

Lisek was employed by N & W as a switchman in its Calumet yard in Chicago. ¹ The switchman's duties include "making-up" trains by linking together otherwise separate cars. That task requires, as a preliminary matter, inspecting the cars' coupling mechanisms to see that they are properly positioned for coupling. Located at either end of each car, the coupling mechanism consists of a drawbar and knuckle that connects with its mate on the adjacent car. The drawbar rests on a pivot, which provides for lateral movement so that cars will not derail while rounding curves. Although coupling occurs "automatically" upon impact, the drawbars must be aligned and at least one of the knuckles must be open in order for the cars to connect. Thus, prior to coupling, the switchman must check the position of the couplers, aligning drawbars and opening knuckles when necessary. Because there is no automated means of centering misaligned drawbars, ² this task is commonly performed manually by a switchman.

On August 5, 1989, Lisek walked between two adjacent tracks in the Calumet yard, numbers 18 and 19, simultaneously checking the cars on either side in preparation for coupling. ³ He came across a misaligned drawbar on Track 19 and went to straighten it. Preparing to move "a couple thousand pounds worth of steel ... an inch at a time"--a task that is accomplished with "a pushing, lifting motion," and "take[s] all the force of your body"--he gripped the drawbar from below with his hands near his waist. (R. 41, Ex. C at 178-79.) He placed his left foot on a tie inside the rail, and his right foot outside of the rail. (Id. at 176-77.) When he began to push the drawbar, however, it moved with unexpected ease. Lisek lost his grip and his feet slipped out from under him. He hit his left knee on the ground, and landed in a prone position. (Id. at 179-81.) At that point he noticed a "wet foreign substance" on the tie, which he believed to be grease. (Id. at 182-83.) In retrospect, he was unsure whether the fall was caused by the unexpected acquiescence of the drawbar, the grease on the tie, or the two factors in combination. (Id. at 179-81, 189.) In any event, the fall caused permanent injury to Lisek's knee and spawned this litigation.

II. FSAA Claim

A. The Law

Although the FSAA does not itself create a private right of action, employees who allege that they have been injured as a result of FSAA violations may sue under the FELA, 45 U.S.C. Sec. 51. See Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969). Because the railroad's duty under the FSAA is absolute, the employee must prove only that the statute was violated, and no showing of negligence is required. Id.; Affolder v. New York, C. & St. L.R. Co., 339 U.S. 96, 99, 70 S.Ct. 509, 510, 94 L.Ed. 683 (1950). In other words, "a failure of equipment to perform as required by the [FSAA] is in itself an actionable wrong, in no way dependent upon negligence and for the proximate results of which there is liability--a liability that cannot be escaped by proof of care or diligence." O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187 (1949); see also Affolder, 339 U.S. at 99, 70 S.Ct. at 510. ⁴

Lisek's claim rests on an alleged violation of FSAA section 2, which provides:

It shall be unlawful for any railroad to haul or permit to be hauled or used on its line any car not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

45 U.S.C. Sec. 2. First enacted in 1893, section 2 was meant to address the safety risks associated with manual coupling, which had required workers to stand between cars as they moved together, sometimes at speeds of up to 12 miles per hour. See United Transp. Union v. Lewis, 711 F.2d 233, 247 n. 34 (D.C.Cir.1983). ⁵ The Supreme Court has held that the statutory phrase "without the necessity of men going between the ends of the cars" applies to coupling as well as to uncoupling. Johnson v. S. Pacific Co., 196 U.S. 1, 18-19, 25 S.Ct. 158, 161-62, 49 L.Ed. 363 (1904). To comply with the statute, then, equipment must enable workers to accomplish both tasks without going between cars. Lisek claims that N & W violated section 2 in that workers needed to go between cars to manually align drawbars before automatic coupling could occur.

Although the Supreme Court has not directly addressed the question of whether the need for manual intercar drawbar alignment violates section 2, it shed light on the issue in Affolder v. New York, C. & St. L.R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1950). In Affolder, a worker had been injured chasing after a runaway chain of cars, which had broken away after two cars had failed to couple on impact. Focusing on the question of whether the plaintiff could meet his burden by showing a failure to couple or whether he must also establish that the coupler was defective, the Court held that the former was sufficient. Thus, "the plaintiff did not have to show a 'bad' condition of the coupler" and "neither evidence of negligence nor of diligence and care was to be considered on the question of this liability." Id. at 99, 70 S.Ct. at 511; see also Maldonado v. Missouri Pac. Ry. Co., 798 F.2d 764, 767 (5th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762 (1987). But the Court added this caveat:

Of course this assumes that the coupler was placed in a position to operate on impact. Thus, if "the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened", the railroad had a good defense.

339 U.S. at 99, 70 S.Ct. at 511. Reiterating that principle in his dissent, Justice Jackson wrote:

Before a failure to couple establishes a defective coupler, it must be found that it was properly set so that it could couple. If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device.

Id. at 101, 70 S.Ct. at 512 (Jackson, J., dissenting). ⁶

Although several circuit and state courts have considered whether the Affolder exception to absolute liability applies to misaligned drawbars as well as to unopened knuckles, they have not reached consensus. Finding the two conditions distinguishable (without explaining why), the Tenth Circuit held in Kansas City S. Ry. Co. v. Cagle, 229 F.2d 12, 14-15 (10th Cir.1955), cert. denied, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443 (1956), that a railroad was liable when cars failed to couple due to a misaligned drawbar, notwithstanding Affolder's holding regarding unopened knuckles. The court reaffirmed its position in Metcalfe v. Atchison, Topeka and Santa Fe Ry. Co., 491 F.2d 892, 896-97 (10th Cir.1974), although it did so without discussing Affolder.

The Sixth Circuit also found that misaligned drawbars are distinguishable from closed knuckles in Clark v. Kentucky & Indiana Terminal R.R., 728 F.2d 307, 312 (6th Cir.1984). It reached that conclusion for two reasons, both compelling. First, the court found as a factual matter that a drawbar could not be so far out of alignment as to impede coupling unless it was defective:

A coupler typically has a lateral play of one to one and one-half inches on either side that permits movement of coupled cars around curves. But a coupler's lateral motion may be increased by wear. "[T]he customary play of an inch or a little more does not interfere with ... coupling upon impact." But "[i]f the couplers are out of alignment beyond the normal play, the coupling will not make automatically even though both knuckles are opened." In contrast, a coupler knuckle is by design either open or closed. Unlike misalignment, the knuckle's position is not attributable to aging equipment.

Id. at 312-313 (citations omitted). Second, the court found that a closed knuckle differed from a misaligned drawbar in that the former could be corrected without the necessity of workers going between cars, while the latter could not:

As importantly, should both couplers be found in the closed position before an attempted coupling, a worker can open a knuckle by operation of the lift lever on the side of the railroad car. In order to correct a coupler so out-of-line that a successful coupling is impossible a railroad worker is required to step between the cars and make the adjustment.

Id. at 313. Thus, Clark reasoned, the manual opening of knuckles does not contravene section 2, while the manual alignment of drawbars, which requires workers to go between cars, violates the statutory requirement.

The state courts have also overwhelmingly held that a failure to couple due to drawbar misalignment constitutes a violation of the Act. See, e.g., Finley v. S. Pac. Co., 179 Cal.App.2d 424, 3 Cal.Rptr. 895, 900-01 (1960); Pry v....