McCalmont v. Pennsylvania Co.

• Decision Date: 18 April 1921
• Docket Number: 10502.
• Citation: 273 F. 231
• Parties: McCALMONT v. PENNSYLVANIA CO.
• Court: U.S. District Court — Northern District of Ohio

273 F. 231

McCALMONT v. PENNSYLVANIA CO.

No. 10502.

United States District Court, N.D. Ohio, Eastern Division.

April 18, 1921

D. F Anderson (of Anderson, Lamb & Osborne), of Youngstown, Ohio for plaintiff.

Thos M. Kirby (of Squire, Sanders & Dempsey), of Cleveland, Ohio for defendant.

WESTENHAVER District Judge.

At the conclusion of all the testimony, defendant moves the court to direct a verdict in its favor. This motion is based on the ground that defendant's car, alleged to be defective within the prohibition of the Safety Appliance Act, was not at the time in use within the meaning of that act, and also that the defective condition of the car was not in a legal sense the proximate cause of the death of plaintiff's decedent. The questions of law raised by this motion are much disputed by lawyers and cannot be said to be fully settled by decision. I have been called upon to deal with these questions in a number of cases, have read and reread the United States Supreme Court cases cited by counsel as pertinent or controlling, and it may therefore be helpful to counsel, not only in this but in other cases, if I review fully the law as I understand it.

The federal Safety Appliance Act of 1893, in section 2 (Comp. St. Sec. 8606), provides: 'On and after the 1st day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic 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.'

It will be observed that the prohibition of this section is against hauling or permitting to be hauled, or used, on its line, any car not thus equipped.

The amendment of 1910, in section 4 (Comp. St. Sec. 8621), provides:

'Any common carrier subject to this act, using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this act, not equipped as provided in this act, shall be liable to a penalty of $100 for each and every such violation.'

The criminal offense thus created is 'using, hauling, or permitting to be used or hauled on its line. ' The word 'permitting' was evidently inserted to meet the case of one interstate carrier receiving cars from another line, not thus equipped, and hauling them on its own line. Then follows a proviso in this section which says:

'Where any car shall have been properly equipped as provided in this act and the other acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by (this) section, * * * if such movement is necessary to make repairs and such repairs cannot be made except at such repair point.'

The penalties referred to therein are obviously the criminal penalties imposed by that section. It may be removed, without liability for such penalties, to the nearest available repair point, but only in the event such repairs cannot be made where the car becomes defective or insecure. Then follows the provision relied on by plaintiff, with reference to the civil liability. It is in these words:

'And such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employe caused to such employe by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to.'

There is also a further proviso, in these words:

'And nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain live stock or 'perishable' freight.'

These prohibitions of the Safety Appliance Act, as I understand them, are against the hauling, using, or permitting to be used or hauled, any car not thus equipped. The permission to haul from the place where the want of repair is discovered is a permission to haul it only to the nearest available repair place, and only in case it is necessary to do such hauling in order to make repairs, and when they cannot be made except at that repair place. Even this permission to haul to the nearest available repair place does not permit the hauling of defective cars by chains instead of drawbars in association with other cars commercially used, unless such defective car contains live stock or perishable freight. Obviously this means that crippled cars must be hauled in trains made up exclusively of crippled cars. The association of the word 'used' with the words 'hauled or permitted to be hauled on its line' clearly indicates that the use must be associated with or related to the transportation or hauling of a crippled car, either in transportation from place to place, or of the car from the place where found to be defective or insecure to the place of repair. It does not mean such use of the car elsewhere or in other relations than such hauling or movement.

Obviously cars have to be equipped somewhere with safety appliances. Obviously, if they are once equipped and get out of repair, they must be repaired somewhere. It could not be contemplated that cars could be either constructed or equipped in such a manner as never to become defective or insecure or out of repair. The act of repairing or putting the crippled car in condition for transportation to a repair point is a different matter, as I understand it, from the using, hauling, or permitting to be used or hauled, upon its line, by the carrier, of a car not properly equipped as is required by the Safety Appliance Act, or becoming out of repair after being once equipped. It is only when the use is in connection with the movement or hauling of the car in the forbidden manner that the Safety Appliance Act can be said to apply. Injuries sustained under other conditions and in other situations are controlled by the negligence rules provided in the federal Employers' Liability Act of April 22, 1908 (U.S. Compiled Statutes, Secs. 8657-8665).

Undoubtedly border line cases will arise. It will be difficult at times to say whether the car was thus in use or out of use. The work being done by an employe on that crippled car may be so intimately connected with the intended or contemplated movement or hauling of the car as to be a part of such movement; and other cases will arise in which the same will be so remote as not to be a part thereof. In that situation, the rules established by the decisions for determining when an employe was engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof, may by analogy furnish a standard whereby this question may be solved. See Pedersen v. Delaware, etc., R.R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125. Ann. Cas. 1914C, 153; Roush v. B. & O.R.R. Co. (D.C.) 243 F. 712.

But, assuming the Safety Appliance Act applies to the situation, the question arising is whether the defect complained of is a proximate cause of the employe's injuries. This question is very perplexing. In determining it we have the assistance of several decisions of the United States Supreme Court, and I believe it will aid to an understanding of the law if I should review each of those cases. I have read them many times in the past, and during the noon recess have again reread them all.

The first in time, if not in importance, is St. Louis & San Francisco Railroad Co. v. Conarty, 238 U.S. 243, 35 Sup.Ct. 785, 59 L.Ed. 1290. In that case the injured employe sustained his injuries as the result of a collision between a switch engine and a loaded freight car having no coupler or drawbar at one end, which drawbar had been pulled out by the cars in transit. This crippled car was about to be placed on an isolated track for repair, and during the movement was left near a switch leading to that track, while other cars were being moved out of its way. This task would have taken about five minutes. While the crippled car was standing there, a switch engine, having nothing to do with the movement of the crippled car, or with the movement of the other cars which had to be taken out of its way, came along and collided with it; in other words, there was a collision between the switch engine, independently operated, and the crippled car standing upon the track. Conarty and two other fellow employes were riding on the forward end of the switch engine that bumped into the crippled car. His fellow employes, one on one side and one on the other, both stepped from the engine and escaped injury; but he was caught between the switch engine and the crippled car and thus sustained his injuries. The holding was that the violation of the Safety Appliance Act and the movement of the car in this manner was not a proximate cause of the injury to the employe. In the opinion, delivered by Mr. Justice Van Devanter, it is said:

'Had these appliances (the coupler and drawbar of the defective car) been in place, they, in one view of the evidence, would have kept the engine and the body of the car sufficiently apart to have prevented the injury; but in their absence the engine came in immediate contact with the sill of the car with the result stated.'

And further:

'It...