Miller v. Cincinnati, New Orleans & Texas Pacific Ry. Co.

• Decision Date: 08 February 1962
• Docket Number: Civ. A. No. 3660.
• Citation: 203 F. Supp. 107
• Parties: Lawrence M. MILLER v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY.
• Court: U.S. District Court — Eastern District of Tennessee

203 F. Supp. 107

Lawrence M. MILLER v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY.

Civ. A. No. 3660.

United States District Court E. D. Tennessee, S. D.

February 8, 1962.

COPYRIGHT MATERIAL OMITTED

Van Derveer, Brown & Siener, Chattanooga, Tenn., for plaintiff.

Whitaker, Hall & Haynes, Chattanooga, Tenn., for defendant.

WILSON, District Judge.

This case is before the Court on a motion for judgment, or, in the alternate, for a new trial. The case arises out of injuries which the plaintiff received upon August 7, 1958 in the course of his employment with the defendant. The suit was brought under the Federal Employer's Liability Act, 45 U.S.C.A., § 51 et seq. It was alleged that the plaintiff, while employed as an engine carpenter, and while working around an emergency fire hose, sustained an injury in attempting to replace the fire hose nozzle in its bracket, from which it had become disengaged. The principal injury was alleged to have been a traumatic severance of the tendon to the biceps muscle in the right arm. The case was tried upon August 29, 1961 and resulted in a verdict for $24,000 in favor of the plaintiff. The defendant has therefore filed this motion now before the Court.

The motion for judgment on the defendant's motion for directed verdict made at the conclusion of the trial, is based upon four grounds, all relating to the alleged insufficiency of the evidence, as a matter of law, to entitle the plaintiff to have the case submitted to the jury. Likewise the first two grounds of the motion for new trial are based upon the alleged inadequacy of the evidence. The remaining grounds in the motion for new trial relate to the alleged excessiveness of the verdict, the refusal of the Court to grant a special charge requested by the defendant and the alleged inconsistency between the special issues and the general verdict found by the jury.

All of the grounds relating to the evidence will first be considered.

From the testimony on the trial it appears that the plaintiff, a 62 year old engine carpenter, during the course of his work for the defendant upon August 7, 1958, sustained a rather unusual injury in that he suffered a traumatic severance of the tendon to the biceps muscle in the right arm, causing that muscle to become unattached to the shoulder. Upon that date he was working alone, welding brackets to the ceiling of small sheds housing emergency high pressure fire hose equipment. This work was being done in preparation for the insulating of these sheds, and to prevent freezing of the fire fighting equipment. The sheds were attached to one of the defendant's shop buildings, and the fire hose was accessible from the shop through windows or openings from the shop into the shed for that purpose. The emergency high pressure fire hose equipment consisted of a hose, approximately two inches in diameter, wound upon a reel, with the reel mounted on top of a boxlike structure which housed the electric pumps. The entire piece of equipment was about the heighth of an ordinary man, and some four feet wide and two feet deep. Attached to the hose was a high pressure nozzle some two feet in length, having a pistol type grip and equipped to operate by a trigger. This nozzle was mounted upon brackets in such a manner as to be accessible from the shop through the windows opening into the shed. The equipment was so constructed that when the nozzle was removed from its brackets or clamps, a switch turned on the pump motor which generated water pressure up to 800 to 850 pounds. Upon return of the nozzle to its proper place in the brackets the electric switch was depressed and the pumps turned off. When the pumps were off the hose was under normal pressure of 130 to 150 pounds.

The plaintiff was the only witness to the actual occurrence in which he was injured. According to his testimony he climbed up on top of the high pressure fire hose equipment in order to electric weld a bracket to the shed ceiling over the equipment. During the course of this work, the fire hose nozzle became disengaged from its brackets, the plaintiff's activities knocking it loose, whereupon, according to the plaintiff, the nozzle began discharging water. He thereupon reached down from his position on top of the equipment and replaced the nozzle with his left hand but in doing so he laid the end of the nozzle on top of the brackets, rather than clamping it in the brackets, its normal position. According to the witness this action nevertheless stopped the nozzle from discharging water. The plaintiff thereupon dismounted from the equipment and proceeded to replace the nozzle within the bracket clamps, rather than leaving it on top. Access to the nozzle from within the shed, as distinguished from going out into the shop and reaching through the access window, was rather cramped. The plaintiff, while standing within the shed at one end of the equipment, sought to reach around with his right arm, grasp the nozzle, lift it from its position on top of the brackets and return it into the bracket clamps. He testified that in so doing, upon removal of the nozzle from its position on top of the bracket, water again surged through the nozzle and that in the strained position in which he was in, with his arm against the corner of the equipment, he felt a sharp pain in his right arm. Nevertheless, he succeeded in restoring the nozzle to its proper position and once again the flow of water was turned off. He denies having depressed the trigger at any time on the nozzle. He then discovered that the biceps muscle in his right arm had dropped down toward his elbow, and after reporting his injury he was taken to the hospital.

Robert P. Hines, a civil engineer who testified on behalf of the plaintiff, stated that he had examined similar high pressure fire hose equipment and nozzle and had obtained the manufacturer's specifications upon the equipment. After demonstrating the mechanisms and operation of the nozzle, he testified that one of the pictures in exhibit had a nozzle with a partially depressed trigger and this in his opinion was due to a defective valve or defective spring in the nozzle. There was later proof in the record that the picture from which the witness testified was not the nozzle involved in the accident. However, the witness further testified that if the water surged through the nozzle upon the plaintiff's lifting it off or out of the brackets, and without depressing the trigger, this indicated erratic behavior as water should not surge through the nozzle until the trigger was depressed, even with the pumps on.

The defendant, in addition to producing in court the actual nozzle involved and a mock-up of the equipment, produced witnesses who testified that following the accident no defect was found in the nozzle, no defect in its operation could be discovered, and it had never been necessary to make any repairs or adjustments to it. At an inspection a few hours after the accident, the equipment was checked and found to be operating properly in every respect, with water not being discharged from the nozzle upon removal from the brackets until the trigger was depressed. However upon this motion, the testimony must be considered in the light most favorable to the plaintiff. Upon cross-examination the defendant's process engineer stated that if water did flow from the nozzle without depressing the trigger, this would indicate that the equipment was defective.

Upon this state of the record it is the contention of the plaintiff that the jury might properly find that the defendant was guilty of negligence in at least three respects, first in providing defective equipment, second in failing to provide a safe place to work, and third in failing to provide adequate help to enable the plaintiff to perform his job safely. Upon the latter two grounds, it is the opinion of the Court that there was no evidence in the record upon which the jury might find that the defendant was negligent or upon which the jury might find that such negligence was the proximate cause of the plaintiff's injury. The plaintiff's injury occurred when he was standing upon the floor. There is nothing in the record to indicate that this was an unsafe place from which to work. Likewise his injury occurred as he was seeking to replace the nozzle. There is nothing to indicate that this was a job requiring the skill or strength of more than one man to perform it safely, or that the plaintiff sought or requested any additional help. Even though additional help may have been needed in installing the ceiling brackets, the injury did not occur during that stage of the work.

A much more difficult problem is presented in determining whether there is any evidence upon which the jury might have found the defendant guilty of negligence in maintaining or providing defective equipment. The Court is of the opinion that upon viewing the evidence in the light most favorable to the plaintiff, there is testimony in the record upon which the jury might find that the fire hose nozzle was defective. Both Mr. Hines, the civil engineer who testified on behalf of the plaintiff, and Mr. Barksdale, the defendant's process engineer, testified that if water surged through the nozzle without depressing the trigger, the nozzle was defective. The plaintiff testified that water did so surge through the nozzle and that he did not depress the trigger. But this testimony alone is not sufficient to establish negligence. There must further have been evidence upon which the jury might have found that the defendant knew, or in the exercise of reasonable care, should have known of the defective condition of the equipment. There must be evidence from which the jury could conclude either that the defendant knew of the defective equipment or that the defective equipment had existed in that state for such a time as reasonably to have been discoverable by the defendant. In short, in order for the defendant...