Pitcairn v. Perry, No. 12017.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, WOODROUGH, and THOMAS, Circuit
• Citation: 122 F.2d 881
• Parties: PITCAIRN et al. v. PERRY.
• Docket Number: No. 12017.
• Decision Date: 30 October 1941

122 F.2d 881 (1941)

PITCAIRN et al.
v.
PERRY.

No. 12017.

Circuit Court of Appeals, Eighth Circuit.

October 13, 1941.

Rehearing Denied October 30, 1941.

122 F.2d 882

Wayne Ely, of St. Louis, Mo. (N. S. Brown, J. H. Miller, and R. B. Elster, all of St. Louis, Mo., on the brief), for appellants.

William H. DeParcq, of Minneapolis, Minn. (Samuel Cohen, of Chicago, Ill., and William R. Kirby and Cox, Blair & Kooreman, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

The Receivers of the Wabash Railway Company have appealed from a judgment entered on a verdict of the jury in favor of Oliver S. Perry, plaintiff in an action brought to recover damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It will be convenient to refer to the parties as they were designated in the lower court.

Plaintiff was a car inspector of the Wabash Railway Company, employed at the time of receiving his injuries in the railroad yards at Moberly, Missouri. He had performed such work for sixteen years. The yard tracks at Moberly extend in an easterly and westerly direction and are numbered from south to north. On July 12, 1939, eastbound freight train No. 74 arrived at Moberly, at about 10:30 o'clock p. m., and stopped on track 2. It had left Kansas City, Missouri, at about 7:15 o'clock that morning. A door on the north side of a box car immediately ahead of the way car was open when the train arrived at Huntsville, about seven miles west of Moberly. The train crew attempted to close it at Huntsville but did not have sufficient time to do so because another train was passing them. They at that time observed nothing wrong with the door except that it would not close. Box car doors, even when new, frequently stick or bind, and it is occasionally necessary to use a crowbar for the purpose of closing them. This it is said, does not necessarily indicate that there is anything wrong or defective about the door. On each car door there are two hangers, which are fastened to the door with four bolts, each going into the door, and the wheel of the hanger rests on a track which is a strip of metal. The car frame holds the door onto the side of the car by means of a strip of metal extending up behind the track. The door is prevented from coming off at the top by a strip of metal that extends outward from the top of the car and then downward, and another strip of metal which extends inward from the top of the car door and upward so that these two strips of metal engage each other in such a way as to prevent the door from coming out at the top. The steel on these strips is about 3/16 or ¼ of an inch in thickness. Such a door weighs approximately 400 pounds, and is held in place by the hanger at the top. It does not rest on the shoes at the bottom, the function of which is to prevent the door from coming out too far. There is a method of closing box car doors by use of a crowbar. Ordinarily, by placing the crowbar underneath the door and working it up slightly, it will release the door at the top and permit it to close.

On the night in question, Perry and a Mr. Bell were inspecting eastbound train No. 74 as it went by. They had been informed of the open door, and it was the duty and custom of car inspectors and patrolmen to close such doors. They accordingly went to the car, a Wabash automobile car, 14 feet high, where they met a Mr. Shewmon, a special patrolman. They all took hold of this door and attempted to close it. It would roll backwards five or six inches, and then when pushed forward would stick. While they were attempting to do this work, they observed that they were obstructing the view of other employees who were making air tests and passing signals on train No. 96, which stood on track 3, and it was agreed

122 F.2d 883

that Perry and Bell would finish the inspection of train No. 74, while Shewmon went for a crowbar. It took Bell and Perry about ten or fifteen minutes to complete the inspection of train No. 74, and when they finished Shewmon had returned to the open door with a crowbar, and a Mr. Smith, another patrolman, applied the bar behind the door, while Perry and Bell pulled at the handle, but it "stayed stuck." Smith flashed his light behind the edge of the door to see if anything was sticking and then got on top of the car and used his flashlight up there. Perry threw his hammer up to Smith who tapped on the back of the rollers to see if there was anything caught. Bell stood at the front end of the door and took hold of the handle. Shewmon and Smith went to the rear end of the door and started pushing with their hands. Perry stood at the middle of the door and pried up on it with the crowbar. In raising doors with a crowbar, the workman relies upon his sense of touch and takes out the slack. When the slack was taken out, Perry stopped and did not exert any further pressure. When Perry pried upwards, he moved the door forward about a quarter of an inch and then held the bar in place and did not keep on prying but stopped so that the others could push and get the door started to close. He held the bar firm against the side of the car and when the others started pushing and pulling the door moved four or five inches. After the door had thus moved, Smith called "look out." The door fell down on top of Perry, who could not escape it, and he suffered severe back injuries

At the close of all the testimony defendant moved for a directed verdict. The record does not show whether the court passed upon this motion or not, and the motion is not printed in the record, but in view of the fact that the case was submitted to the jury upon instructions, we are assuming that the motion was denied. The court instructed the jury that if they found that the door would not have fallen from the track if it and its supporting appliances had been in good repair, and that the means of knowing what kind of defect, if any, caused the door to fall was exclusively and entirely within the knowledge and control of the defendants, and was not known by plaintiff or readily determinable by him, they could find defendants liable, unless they believed from other facts in evidence that the injury was not caused by negligence of the defendants.

In seeking reversal, defendants contend (1) the doctrine of res ipsa loquitur does not apply; (2) there was no evidence of negligence; (3) plaintiff assumed the risk of injury; (4) the court erred in not permitting defendants to introduce and read in evidence the original complaint filed by plaintiff; (5) the court erred in permitting plaintiff to testify in rebuttal that he had been examined by Dr. Ambrose at the request of the defendants, and in overruling a motion for mistrial for admission of such testimony and permitting argument in respect thereto by plaintiff; (6) the court erred in denying a motion for a mistrial because of plaintiff's argument that defendants had not called Dr. Streeter; and (7) the court erred in instructing the jury. We shall consider these contentions in the order stated.

This case is governed by the law as embodied in the Federal Employers' Liability Act. That statute,...