McCalmont v. Pennsylvania R. Co.

• Decision Date: 04 October 1922
• Docket Number: 3603.
• Citation: 283 F. 736
• Parties: McCALMONT et al. v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

283 F. 736

McCALMONT et al. v. PENNSYLVANIA R. CO.

No. 3603.

United States Court of Appeals, Sixth Circuit.

October 4, 1922

D. F Anderson, of Youngstown, Ohio (Anderson, Lamb & Osborne, of Youngstown, Ohio, on the brief), for plaintiffs in error.

W. C Boyle, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.

For opinion below, see 273 F. 231.

McCalmont was foreman of car inspectors for the Pennsylvania Railroad at its yard in Conway. These yards were very extensive (counsel say the largest in the United States). One track known as No. 444, was devoted wholly to use as a dead or storage track for the temporary holding of bad-order cars which must go to the shop for repairs. As cars of that character were found in different parts of the yard, they were switched onto No. 444. Whenever there was a sufficient accumulation-- and at least once in 24 hours, and sometimes as often as twice in 24 hours-- an engine came in and took the cut of bad-order cars away to the shop, which was at another point in the same yards and about a half a mile distant. It was McCalmont's duty to supervise the cutting out of such cars and their placement on this track and to see they were there put in such condition that they could be coupled together for hauling away. It was the duty of the conductor who might come in after the cars with an engine to get them actually coupled, and thus to make up the train or string of cars for movement.

A car which had just been loaded at Conway for shipment out was found to have at one end a coupler so defective that it would not work without repairs which could only be made at the shop. It was accordingly switched onto track No. 444. It was then attached at this end by a chain to the adjoining car upon this track. After several other cars had accumulated there, McCalmont, in the course of his inspection, observed this chain coupling, considered that it gave too much slack, and he and a helper went between or under the cars in order to readjust it as McCalmont thought it ought to be, so that the car would be ready to move whenever the engine came for it. While he was thus engaged another car was kicked onto the same track, struck the string of cars there standing, and McCalmont was caught between the two cars where he was and killed.

Rules 26 and 723 of the company were as quoted in the margin. ^[1] McCalmont was familiar with these rules, but did not display the signal. His helper warned him not to go between the cars because the blue flag was not out, but McCalmont disregarded the warning.

This action was brought in the court below by the administratrix, who sought to recover because of the violation of the Safety Appliance Act, 27 Stat. 531, amended by 36 Stat. 298 (Comp. St. Secs. 8605-8623).

The defenses were: First, that the car was not so far in use or being hauled as to make the act applicable; and, second, that the defective coupler was not the proximate cause of the injury. The trial judge thought that each of these defenses was good and directed a verdict for the defendant. The case comes here for a review of this ruling.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

The Safety Appliance Act does not in terms forbid all movements of a defective car. It directs the carrier not to 'haul or permit to be hauled or used on its line any car, etc. ' This forbids hauling 'on the line' and using 'on the line'; and it might well be thought that the prohibition did not apply at all to merely yard movements (see Louisville & Jeffersonville Bridge Co. v. U.S., 249 U.S. 534, 39 Sup.Ct. 355, 63 L.Ed. 757), and particularly to the movement from one place to another in a yard of bad-order cars which had been set out of use and which movements were incidental to getting them to a shop or repair track. When we observe the language of section 4 of the amendment of 1910 (section 8621), the ambiguity is not removed. The penalty prescribed is for 'using, hauling or permitting to be used or hauled on its line any car' etc. The proviso is that, if a car has become defective while being used by such carrier 'upon its line,' it may be hauled to the nearest available repair point; but this hauling may be done only from the place where the discovery was made. After that haul to the repair point has been completed, the permission of the proviso is exhausted. It is common knowledge that the practical situation requires such a car to be hauled to the yards within which repairs can be made, and then often to wait a considerable time and to be shifted about more or less before work can be done upon it-- all as the exigencies of repair work make necessary. After the car has once thus reached the general repair point, it is not easy to say that its subsequent hauling, perhaps from a switch track to the shop or to another switch track, is a hauling 'from the place where such equipment was first discovered to be defective.' If not, such second hauling would not be within the provisions of the proviso of section 4 of the act of 1910, and a penalty accrues for every such shifting movement in the yard, if such yard hauling is within the primary prohibition. On the contrary, the intent to impose such a penalty under such circumstances seems improbable. We think we must interpret Texas Railway v. Rigsby, 241 U.S. 33, 42, 36 Sup.Ct. 482, 60 L.Ed. 874, as based upon the theory that these intermediate shiftings at the repair point yard are part of the unitary journey of the car from the point of first discovery to the precise point of actual repair on the repair track or in the shop, and are therefore all within the permission of this proviso and all within the declared continuance of civil liability. Reference to the opinion of the Circuit Court of Appeals (222 F. 221, 138 C.C.A. 51) in that case shows that there was lack of agreement as to whether the car was actually being hauled or used upon the line within the meaning of the act, and perhaps leads to the inference that its actual presence and current movement upon the main track were, in the mind of the majority, the controlling facts. The opinion of the Supreme Court does not seem to rest upon this particular ground, and, indeed, does not expressly state the conclusion of the court in this respect; but the affirmance of the judgment below necessarily implies that the case disclosed such using and hauling of the car as were forbidden by the act and covered by the proviso.

Though the Rigsby Case is so far controlling, it is in another respect distinguishable. There the car was actually being hauled. In the present case no hauling was in progress or in immediate contemplation. The car was wholly out of present use. The original putting on of the chain and the further adjustment of the chain were in the nature of temporary repairs which would permit the car to be taken to the shop, and, so long as work of this character is not done as a part of the immediate operation of hauling to the shop, it does not seem important whether the expected interval before hauling is a few hours or a much longer time. Fully remembering that the benefits of the act are not confined to those who were actually trying to couple at the moment of the injury, still it does not follow that they extend to one who is merely putting the couplings in condition for a use which, though it may come soon, is distinctly of the future and not of the present.

However we find the decision of this question unnecessary because of the conclusion which we reach upon the subject of proximate cause. It is...