McGowan v. Denver & Rio Grande Western R. Co.

• Decision Date: 14 May 1952
• Docket Number: No. 7683,7683
• Citation: 244 P.2d 628,121 Utah 587
• Parties: McGOWAN, v. DENVER & R. G. W. R. CO.
• Court: Utah Supreme Court

Page 628

244 P.2d 628

121 Utah 587

McGOWAN, v. DENVER & R. G. W. R. CO.

No. 7683.

Supreme Court of Utah.

May 14, 1952.

W. Q. Van Cott, Grant H. Bagley, Sid N. Cornwall, Dennis McCarthy and Clifford L. Ashton, Salt Lake City, for appellant.

Brigham E. Roberts, Wayne L. Black, Salt Lake City, for respondent.

WADE, Justice.

The defendant, Denver & Rio Grande Western Railroad Company appeals from a judgment on a jury's verdict awarding plaintiff, Will J. McGowan, respondent herein, damages for the loss of part of his big toe in a car coupling accident. The action was based on a violation of the Federal Safety Appliance Act and the Federal Employers' Liability Act, making railroads liable to their employees for damages sustained from injuries proximately caused in whole or in part by a violation of the Safety Appliance Act and providing that no such employee 'shall be held to have been guilty of contributory negligence.' ¹ Defendant contends (1) that the court erroneously instructed the jury, (2) that the evidence does not sustain a finding that the Safety Appliance Act was violated, and (3) that the court erroneously excluded evidence which defendant claims would show that plaintiff's negligence was the sole proximate cause of his injuries.

The accident occurred in the Denver & Rio Grande Western Railroad Company's yards at Cameo, Colorado in the afternoon of April 15, 1950, in coupling a Denver & Rio Grande coal car to a Grand Trunk Western Railroad Company box car. The box car was stationed on the side track while an engine facing westerly with the coal car coupled to its rear was backing easterly to make the coupling. Plaintiff was directing that operation from a point north of the side track and about eight feet west of the west end of the box car. ² Plaintiff testified that as the east end of the coal car approached him he noticed that the moving coal car's drawbar was so far out of alignment toward him that without adjustment, it would not couple on impact so he shoved it with his right foot moving it slightly but not enough, that he then gave the engineer an unheeded stop signal and shoved the drawbar again still not moving it enough, so he shoved it again this time moving it enough so that it coupled on impact, crushing his toe between the knuckles.

It is necessary to have in mind what facts are required to prove a violation of the Safety Appliance Act. The claim that the jury was erroneously instructed deals with such facts so we will consider that claim first.

The court's instructions authorized the jury to find a violation of the Act if they concluded that the coupler would not have coupled automatically upon impact without plaintiff going between the cars, which is the effect of the following instructions when considered together. Instruction No. 3 says:

'If you find from a preponderance of the evidence that on the occasion when plaintiff was injured the couplers on the two cars would not have coupled automatically upon impact without the necessity of plaintiff going between the cars, then the defendant is guilty of a violation of the Safety Appliance Act, * * *'

Instruction No. 4 says:

'You are further instructed that it was the duty of the defendant company to require on the two cars in question couplers that would couple automatically upon impact without the necessity of plaintiff going between the cars.'

Instruction No. 5 says:

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'* * * if, in order to effect an automatic coupling by impact, it was necessary for plaintiff to adjust the drawbar or coupling mechanism with his hands or feet, then there would be a violation of the Safety Appliance Act by the defendant in not having the type of coupler required by the Act.' (Italics added.)

Instruction No. 7 says:

'The Safety Appliance Act * * * requires * * * couplers which will couple automatically by impact without the necessity of men going between the cars and the fact that some lateral motion in the coupler mechanism is necessary in the operation of defendant's trains does not relieve the defendant from the requirements of said Act.'

Defendant contends that the statute requires a finding that the couplers were defective or in bad condition in order to establish such violation. It argues that no device has ever been invented, or ever will be, which will align drawbars without a person going between the cars and that no coupler will function automatically unless the knuckles are properly set. It quotes the Supreme Court of the United States in Affolder v. New York, Chicago & St. Louis R. R. Co., 339 U.S. 96, 99, 70 S.Ct. 509, 511, 94 L.Ed. 683, that 'if 'the failure of these two cars to couple on impact was because the coupler * * * had not been properly opened', the railroad had a good defense', which shows clearly that the mere failure to couple automatically upon impact does not conclusively show a defective coupler.

From the fact that plaintiff's foot was crushed between the knuckles, defendant argues that it is clear that he was opening the knuckle of the moving car and not aligning the drawbar when the accident occurred. If such is the fact the Affolder case, supra, makes it clear that plaintiff was not entitled to recover.

Plaintiff's testimony was positive, and not expressly denied, that the knuckles were opened and that he was aligning the drawbar. There was no lever on the left hand or plaintiff's side of the moving car by which the knuckle could be opened without going between the cars but he could have stepped back a few feet and opened the knuckle of the standing car by manipulating the lever on its right hand side. With one knuckle opened and the drawbars properly aligned the coupling would be made even though the other knuckle is closed. The fact that plaintiff went in between the cars is evidence that he thought that it was necessary to do so in order to effect a coupling, for realizing the danger, he would not unnecessarily go between the cars to make a correction. Of course the drawbars must be aligned closer to couple with only one knuckle opened than where both are opened. It would not be improbable that plaintiff placed his foot against the open knuckle to adjust the drawbar alignment, for pushing against the open knuckle since it turns toward him and is farther from the drawbar anchorage would give him a better footing and greater leverage in pushing the drawbar back into alignment, than pushing against the side of the drawbar. But since plaintiff is an interested witness and the only person who knows the facts on that question, the jury could reasonably find contrary to his testimony that he was aligning the drawbar though it is supported by the above circumstances. ⁴

Instruction No. 5, states that 'if it was necessary for plaintiff to adjust the drawbar or coupling mechanism with his hands or feet' there was a violation of the act. (Emphasis added.) Since the coupling was actually made there were no other reasons for the claim that it would not have coupled had plaintiff failed to go between the cars except that the drawbar was misaligned or the knuckles closed. So the emphasized words 'coupling mechanism' could be construed to refer to opening the knuckle. But the instructions only authorized a finding that the Act had been violated if the jury found that it was necessary for plaintiff to go between the cars in order to effect an automatic coupling. Since one coupler could be opened without the necessity of plaintiff going between the cars and even with the other knuckle closed, the coupling would have been made, with proper drawbar alignment, going between the cars would be necessary only to adjust the alignment, so under these instructions plaintiff could recover only if it was necessary to make that adjustment.

While it would have been better to have submitted the issue to the jury of whether plaintiff adjusted the drawbar or merely opened the knuckle, defendant made no such request nor was that point ever raised at the trial or argued on this appeal. Defendant merely excepted generally to each of the above instructions as a whole and to each paragraph thereof without specifying any grounds therefor. It argues here, not that such issue should have been submitted to the jury or that such instructions require a verdict for plaintiff if he merely opened the knuckle, but that the instructions were erroneous because they authorized a verdict against defendant merely on a finding that the coupling would not have been made had plaintiff failed to go between the cars without requiring a further finding that the coupler was defective or in bad condition. Under this state of the record, defendant cannot complain that this issue was not submitted or that the instructions might have been construed to allow a verdict against it if the jury believed that plaintiff was merely adjusting the knuckle.

Under the latest decisions of the United States Supreme Court, which is the court of last resort on this question, such failure was not error. In O'Donnell v. Elgin, J. & E. R. Co., 338 U.S. 384, 389, and 394, 70 S.Ct. 200, 203, 94 L.Ed. 187, in discussing whether negligence is a necessary element of liability under the Safety Appliance Act, where the coupler broke after being coupled, the court, through Mr. Justice Jackson, said:

'We hold that the Safety Appliance Act requires couplers which, after a secure coupling is effected, will remain coupled until set free by some purposeful act of control.

'What then should a jury be instructed is the consequence of a failure to provide couplers that so perform? Should the jury be instructed that it must find liability or merely that it may find liability for injuries proximately resulting from the failure?

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'* * * As to the claim based on the Safety Appliance Act, we hold that the plaintiff was entitled to a peremptory instruction that to equip a car with a coupler which broke in the switching operation was a violation of the Act, which...