Metcalfe v. Atchison, Topeka and Santa Fe Railway Co.

• Decision Date: 05 February 1974
• Docket Number: No. 73-1481.,73-1481.
• Citation: 491 F.2d 892
• Parties: Florence METCALFE, Administratrix of the Estate of John E. Metcalfe, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.2d 892 (1974)

Florence METCALFE, Administratrix of the Estate of John E. Metcalfe, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.

No. 73-1481.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted October 15, 1973.

Decided February 5, 1974.

Rehearing Denied February 28, 1974.

COPYRIGHT MATERIAL OMITTED

Peter J. Crouse, of Grant, Shafroth, Toll & McHendrie, Denver, Colo., for defendant-appellant.

Daniel D. Sawyer, of Hubbell, Lane & Sawyer, Kansas City, Mo., for plaintiff-appellee.

Before HILL and BARRETT, Circuit Judges, and SMITH, Senior District Judge^*.

TALBOT SMITH, Senior District Judge.

The present action was instituted in the United States District Court for the District of Colorado by Florence Metcalfe, widow of John E. Metcalfe and administratrix of his estate, against the appellant, Atchison, Topeka and Santa Fe Railway Company, to recover damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., for a violation of the Safety Appliance Act, 45 U.S.C. § 1 et seq., which allegedly contributed to the injury and death of her husband. The jury returned a verdict in favor of appellee in the sum of $107,000 plus costs. From the judgment entered on the verdict and the order of the district court denying its motion for judgment notwithstanding the verdict or for a new trial, the Railroad appeals.

The principal question presented for review is whether there was sufficient evidence to support the jury's findings that the Railroad violated § 2 of the Safety Appliance Act and that this violation was a cause, in whole or in part, of the injury and death of Metcalfe. Additionally, the Railroad attacks the jury's award of damages as excessive.

On July 30, 1970, before dawn, Metcalfe was working in the Railroad's Colorado Springs yards as foreman of a switch crew, a position he had held for eighteen years. The crew had coupled onto the front end of the switch engine, heading north on the team track, which runs generally north and south, a piggyback car. The ultimate objective was to back the engine and the piggyback car to the south on the team track until reaching the wye track which, roughly speaking, forms a triangle to the west with the hypotenuse of the team track, and to proceed down the north leg of the wye track, eventually pushing the piggyback car onto the south leg of the wye track and thereby turning it around. En route to the wye track, a box car was coupled to the north end of the piggyback car. So constituted, the train continued backing until the engine and most of the piggyback car were situated on the north leg of the wye track. At this point Metcalfe informed his switchman helper, Dwight Fields, that they would uncouple the box car and leave it stationary on the team track. Fields was positioned ten to twenty feet east of the train so as to pass signals around the curve from Metcalfe to the engineer. By means of a lever on the east side of the piggyback car, and without going between the ends of the cars, Metcalfe uncoupled the piggyback car and the box car. Having done so, he gave a back-up signal to Fields, and, after the engine and piggyback car had moved ten to twenty feet to the southwest, a stop signal. Then Metcalfe stepped between the cars and, facing north, opened the knuckle on the box car. Fields meanwhile had taken four or five steps towards the front of the train before glancing back at Metcalfe. Metcalfe was standing between the piggyback car and the box car and facing south or southeast. As Fields watched, he "dropped straight down out of sight." Fields, as yet not alarmed, walked back to where Metcalfe had disappeared from view and found him pinned beneath the southeast wheel of the box car, six to fifteen feet north of the piggyback car.

After the arrival of an ambulance, it was decided to recouple the piggyback car and box car in order to move the box car northward and free of Metcalfe's body. At this time it was noticed that the drawbar on the coupler of the piggyback car was slanted toward the east to such an extent that it was necessary to realign it, going between the cars to do so, in order to make the coupling.

Appellee claims that the jury was entitled to infer from these facts that Metcalfe, after he had opened the knuckle on the box car, noticed the misaligned drawbar on the piggyback car and was proceeding to adjust it when the box car moved southward, crushing him under one of its wheels. The necessity of going between the cars to adjust a misaligned coupler, according to appellee, constitutes a violation of § 2 of the Safety Appliance Act. The Railroad, in turn, contends that there is insufficient evidence that Metcalfe was between the cars for any purpose other than opening the knuckle on the box car and that, even if Metcalfe was proceeding to adjust the coupler, such action was premature. It is the Railroad's position that the sole cause of the accident was Metcalfe's negligence in stepping in front of the box car to open the knuckle without having chocked the wheels or set the brakes in a manner sufficient to prevent the box car from rolling.

The Federal Safety Appliance Act, adopted in 1893, forced the railroads to install appliances designed to eliminate some of the more hazardous aspects of railroad work. The Act did not, of itself, create a federal cause of action imposing civil liability upon the railroads for violations. Rather, it imposed sanctions in the form of monetary penalties. In 1908, however, Congress, via the Federal Employers' Liability Act FELA, provided railroad employees with a cause of action based on violations of the Safety Appliance Act. 45 U.S.C. § 51. The peculiar characteristics of this newly-created cause of action were described by Mr. Justice Brennan in Crane v. Cedar Rapids & I. C. R. R., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969), as follows:

"In such actions, the injured employee or his or her personal representative in case of death is required to prove only the statutory violation and thus is relieved of the burden of proving negligence. . . . He is not required to prove common-law proximate causation but only that his injury resulted `in whole or in part\' from the railroad\'s violation of the Act, . . . and the railroad is deprived of the defenses of contributory negligence and assumption of risk . . . ." (citations omitted) 359 U.S. at 166, 89 S.Ct. at 1708.

The standard applied by federal courts in determining whether there is sufficient evidence to send a FELA case to the jury is significantly broader than the standard applied in common law negligence actions. As stated by the United States Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear." See Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S. Ct. 443, 1 L.Ed.2d 493 (1957); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037 (10th Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Chicago R.I. & P.R.R. v. Melcher, 333 F.2d 996 (8th Cir. 1964); Prosser, Torts § 80, p. 536 (4th ed. 1971). To this standard, however, must be added the admonition found in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944): "The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." See Missouri-Kansas-Texas Ry. v. Hearson, supra, 422 F.2d at 1041.

As already noted, appellee alleged that the Railroad violated § 2 of the Safety Appliance Act, 45 U.S.C. § 2, in that the coupler of the piggyback car was misaligned to such an extent as to preclude coupling automatically by impact.

Section 2 reads:

It shall be unlawful for any common carrier engaged in interstate commerce by railroad 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.

There is no dispute but that all of the Railroad's cars are equipped with "automatic couplers" in the sense that the cars can ordinarily be coupled together without men going between the ends of the cars.¹ The coupling apparatus, however, permits limited movement of the drawbar from side to side in order to allow the cars, when coupled together, to pass around curves without derailment and to allow coupling on a curve. In some cases, the drawbar may move so far off-center as to preclude automatic coupling. In such cases, it is necessary to go between the cars to adjust the drawbar.

A substantial number of state and federal courts have found that a failure to couple automatically because of a misaligned drawbar is sufficient to sustain a finding that § 2 has been violated.² San Antonio & A. P. Ry. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110 (1916); Atlantic City R. R. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 61 L.Ed. 150 (1916); Kansas City S. Ry. v. Cagle, 229 F.2d 12 (10th Cir. 1955), cert. denied, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443 (1956); Chicago, St. P., M. & O. Ry. v. Muldowney, 130 F.2d 971 (8th Cir.), cert. denied, 317 U.S. 700, 63 S.Ct. 526, 87 L.Ed. 560 (1942); Hampton v. Des Moines & Cent. I. R. R., 65 F.2d 899 (8th Cir. 1933); Hohenleitner v. Southern Pac. Co., 177 F. 796 (C.C.D.Or. 1910); Finley v. Southern Pac. Co., 179 Cal.App.2d 424, 3 Cal.Rptr. 895 (1960); Hallada v. Great Northern Ry., 244 Minn. 81, 69 N.W.2d 673, cert. denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773 (1955); White v. Atchison, T. & S.F. Ry., 244 S.W.2d 26 (Mo.1951), cert. denied, 343 U.S. 915, 72 S.Ct. 648, 96 L.Ed. 1330 (1952); Chicago, R.I. & P. Ry. v. Ray, 67 Okl. 77, 168 P. 999 (1917), cert. denied, ...