Missouri-K.-TR Co. of Texas v. Ridgway

• Decision Date: 30 August 1951
• Docket Number: No. 14189.,14189.
• Parties: MISSOURI-K.-T. R. CO. OF TEXAS v. RIDGWAY.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F.2d 363 (1951)

MISSOURI-K.-T. R. CO. OF TEXAS v. RIDGWAY.

No. 14189.

United States Court of Appeals Eighth Circuit.

August 30, 1951.

COPYRIGHT MATERIAL OMITTED

Everett Paul Griffin, St. Louis, Mo., and O. O. Touchstone, Dallas, Tex. (G. H. Penland, Dallas, Tex., on the brief), for appellant.

William H. DeParcq, Minneapolis, Minn. (Chester D. Johnson, Minneapolis, Minn., Harvey B. Cox and Harvey B. Cox, Jr., St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

GARDNER, Chief Judge.

The instant action was brought by Ralph P. Ridgway against Missouri-Kansas-Texas Railroad Company under Section 11, Title 45 United States Code Annotated, to recover damages for personal injuries. The parties will be referred to as they were designated in the trial court.

At the time of the accident resulting in plaintiff's injuries he was employed by defendant as a switchman in its yards at Fort Worth, Texas. The defendant is a common carrier and at the time of the accident plaintiff and defendant were engaged in interstate commerce. It is alleged that the accident occurred in the course and conduct of certain switching operations during which, in the performance of his duty, plaintiff was required to get upon a certain car for the purpose of regulating and controlling its movement and speed by operating the hand brake upon the car and and that the car was not equipped with an efficient hand brake and as a result of its defective and inoperative condition plaintiff in operating said brake in the usual and customary manner was caused to be thrown, knocked and pitched from the car to the ground and dragged and run over, resulting in personal injuries.

Viewing the evidence, as we must, in a light most favorable to the plaintiff, the facts in connection with the accident may be succintly stated as follows: About 7:30 o'clock on the morning of March 11, 1946, plaintiff mounted a north-bound tank car at its northeast corner and went immediately to the hand brake, intending to stop the car about four or five car lengths off the lead, to make room for other car movements. He stood on the running board, eight or ten inches wide, which completely circled the tank car. After taking the slack out of the hand brake he inserted his club and put some pressure on it but the brake did not retard the progress or speed of the car. He then released the brake and began tightening it up, placing his club in the brake wheel and putting pressure on it. He was stooped over with his left hand on the grabhold which extended all the way around the car at shoulder level. While in this position and pulling clockwise with his brake club, the wheel suddenly broke loose and unexpectedly yielded, coming toward him and throwing him off the moving car. His body landed between the rails of the track, his head hitting the west rail immediately ahead of the wheel which struck his head and knocked it off the rail and he was rendered unconscious. His left hand and his right foot received injuries and he was dragged under the car for some distance. When he recovered consciousness he was lying between the rails. A fellow employee called for an ambulance and he was taken to a hospital for surgical and medical treatment. The extent and severity of his injuries, not being material to the cause of the accident and the right of recovery, may be referred to later herein.

The action was tried to a jury and at the close of all the testimony defendant moved for a directed verdict which was denied and the case was submitted to the jury upon instructions to which certain exceptions were saved by defendant. The jury returned a verdict in favor of the plaintiff, assessing his damages at $98,800. Defendant then moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied, and it prosecutes this appeal. It seeks reversal on various grounds not very succinctly stated in its brief but it contends that: (1) the court erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict; (2) the trial court erred in admitting certain evidence; (3) counsel for plaintiff was quilty of such misconduct as to constitute reversible error; (4) the verdict of the jury is grossly excessive and monstrous and reflects passion, bias and prejudice on the part of the jury.

This action is bottomed on the so-called Safety Appliance Act, Title 45, Section 11, U.S.C.A. This act among other things provides that, "It shall be unlawful for any common carrier subject to the provisions of sections 1-16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in sections 11-16 of this title, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; * * *."

The act was designed to safeguard and protect railroad employees against the hazard of their employment by requiring railroads to equip their cars with various safety devices including "efficient hand brakes". Liability on the part of the carrier for injuries is predicated on its failure to observe the requirements of the act. Compliance with the act is an absolute duty and any failure to comply therewith which results in injury to an employee gives rise to liability to compensate the injured employee for his injuries regardless of actual negligence on the part of the railroad company other than failure to comply with the statute. The statutory duty is not satisfied by the exercise of reasonable care in maintaining the prescribed safety appliances in a safe, operative condition, nor is it discharged by the exercise of great care to keep these appliances reasonably safe. If the evidence showed that the appliance which is required by the act was defective or out of repair at the time the injuries were received, no importance can be given to the question as to whether or not this condition was attributable to negligence on the part of the defendant. In the instant case if it be shown that the hand brake was not an efficient hand brake and that such condition caused or contributed to the injuries suffered by the plaintiff, then there was a right of recovery. As said by the Supreme Court in Myers v. Reading Company, 331 U.S. 477, 67 S.Ct. 1334, 1339, 91 L.Ed. 1615, "The respondent is not subject, as has been suggested, to an absolute liability to its employees comparable to that established by a workmen's compensation law. As an interstate common carrier, however, it is subject to liability for injuries to its employees resulting from its violation of its absolute duty to comply with the Safety Appliance Acts. The evidence here was sufficient to support the verdict for the petitioner, whether tested by the formula used by this Court in Improvement Co. v. Munson, 14 Wall. 442 20 L.Ed. 867; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; or Lavender v. Kurn, supra 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict."

Here the evidence warranted the jury in finding that the plaintiff was attempting to operate this brake in the usual and customary manner; that when so operated it did not effectively perform its functions as an efficient brake and the evidence warranted the jury in finding that the failure to so function was the proximate cause of plaintiff's injuries. But not only was there proof that the brake did not properly function but there was proof that it was mechanically defective. The proof was undisputed that the chain which normally tightens about the brake shaft when the brake is being set was five or six inches longer than the standard chain in general use. There was evidence that because of this extra length it kinked up or "wadded and all knotted up"; in fact, testimony offered on behalf of the defendant itself was to the effect that this chain was too long for an efficient brake. In Myers v. Reading Co., supra, in speaking of the character of proof to show inefficiency the court said: "The inefficiency of the brake in this case may have consisted of its defective condition or its defective functional operation resulting, in either case, in its knocking from the brake platform an experienced railroad man attempting to tighten or set the brake in the customary manner described in his testimony."

We think the jury could reasonably have found that the brake was not an efficient brake and that its defective condition contributed to or caused plaintiff's injuries and hence there was no error in denying defendant's motion for a directed verdict.

There was offered in evidence Exhibits A-1, A-2 and A-3, the records with reference to the condition of the hand brake. These were records regularly kept by the defendant. They were offered for the limited purpose of showing the condition of this brake at the time of the accident and they purported to show that fact. But it is claimed that they were inadmissible because they were evidence of subsequent repairs. However, they were not offered for the purpose of showing subsequent repairs and whatever notation the records may have had with reference to subsequent repairs might have been deleted had defendant's counsel so asked. Manifestly, the notation showing the condition of the brake at the time of the accident was admissible and that part of the record might have been read to the jury, omitting the other parts, had counsel for defendant so desired. Baltimore & O. R. Co. v. Felgenhauer, 8 Cir., 168 F.2d 12; Southern Pacific Co. v. Schoer, 8 Cir., 114 F. 466. But quite aside from this, defendant itself showed that there had been subsequent repairs or changes made in the appliance by shortening the chain, and there was nothing in...