Ramsouer v. Midland Valley R. Co.

• Decision Date: 07 April 1943
• Docket Number: No. 12459.,12459.
• Citation: 135 F.2d 101
• Parties: RAMSOUER v. MIDLAND VALLEY R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

135 F.2d 101 (1943)

RAMSOUER v. MIDLAND VALLEY R. CO.

No. 12459.

Circuit Court of Appeals, Eighth Circuit.

April 7, 1943.

Clarence C. Chilcott, of Kansas City, Mo. (Fadjo Cravens, of Fort Smith, Ark., on the brief), for appellant.

James D. Gibson, of Muskogee, Okl. (H. L. Smith of Tulsa, Okl., and R. A. Young, Jr., of Fort Smith, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a summary judgment dismissing appellant's action brought to recover damages for the death of her husband. We shall refer to the parties as they appeared in the trial court.

The complaint as amended alleged that at the time of receiving his fatal injuries, deceased was employed by the defendant as a switchman at Pawhuska, Oklahoma; that he was injured on a siding or switch track maintained by defendant adjacent to the dock and warehouse of the Osage Flour and Feed Company. As the basis for her cause of action plaintiff alleged as follows:

"* * * that on or about the tenth day of January, 1937, defendant attempted to set out a car of merchandise on said siding at said dock which was approximately 42 inches high and 42 inches from said track, and that in moving and setting out said car at said time and place said decedent, Edward E. Ramsouer, was an employee of the defendant and was assisting the defendant in so doing by standing between said dock and said track at a point approximately opposite the doors of the warehouse hereinafter referred to and observing the position of said car with reference to said dock and warehouse and passing signals to those moving said car in order to spot the same for unloading at a place where the doors of said car would be opposite the doors of said warehouse which were located directly across and attached to said dock, when and where by reason of the negligence and carelessness of the defendant, the nature of which is unknown to the plaintiff and unascertainable by her, said car of merchandise, while being so moved, was caused to leave the rails of said switch track and move in the direction of decedent and said dock at a point approximately where decedent was standing and to run against, upon and over decedent as a direct result of which he was caught between said dock and said car and so rolled, injured, bruised, crushed and mangled in and about his head, face, body, hips and limbs as to immediately thereafter cause him conscious, great and excruciating pain, suffering and anguish of body and mind, and bring about his death, which occurred on or about the twentieth day of January, 1937."

After having answered the amended complaint, defendant interposed a motion for summary judgment. This motion contained averments to the effect that plaintiff had instituted an action in the District Court of Tulsa County, Oklahoma, on the identical cause of action, at which evidence was taken, and that at the conclusion of plaintiff's evidence defendant demurred to the evidence. The court then announced its intention to sustain the demurrer, whereupon plaintiff, with leave of court, dismissed her action without prejudice. The motion embodied a summary of the evidence submitted, and it was asserted that the evidence offered in the Oklahoma case established the fact that Edward E. Ramsouer was guilty of negligence and that plaintiff had not only failed to prove a cause of action or right of recovery but had affirmatively proven that she did not have any cause of action or right to recover against defendant. At the hearing of the motion for summary judgment, the trial court admitted in evidence the depositions and oral testimony taken and offered in the Oklahoma case and it also admitted evidence submitted by plaintiff. The court sustained defendant's motion on the ground that the facts showed no negligence and that the rule of res ipsa loquitur was not applicable because the facts disproved negligence.

On this appeal plaintiff contends that an issue of fact as to defendant's negligence was presented, and hence, it was improper for the court to grant the motion for summary judgment.

Rule 56(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that, "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Subparagraph (c) of this rule provides that, "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," then a summary judgment may be entered.

The record in this case is unusual in that it contains all the evidence introduced at the trial in the Oklahoma court. The question presented by such a motion is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists. A. B. C. Fireproof Warehouse Co. v. Atchison, T. & S. F. R. Co., 8 Cir., 122 F.2d 657; Miller v. Miller, 74 App.D.C. 216, 122 F.2d 209; Fox v. Johnson & Wimsatt, 75 U.S.App.D.C. 211, 127 F.2d 729. Defendant contends that the evidence conclusively proves that deceased was guilty of contributory negligence and that he assumed the risk. It will be necessary to examine the evidence to determine the soundness of this contention.

Deceased was a brakeman of many years experience. The train crew with which he was working on January 10, 1937, was made up of conductor McElwee, engineer Stubbs, fireman Bremicker, brakeman Kendall, and deceased. They were about to take a freight train from Pawhuska, Oklahoma, but the train had to be made up at Pawhuska and certain cars in the yards had to be switched before the train could leave. The car involved in the switching movements resulting in injury to Ramsouer had come to Pawhuska on train 99 and was to be switched to the spur track adjacent to the building of the Osage Flour and Feed Company, where it was to be "spotted." This building next to the track was an open dock for unloading purposes, except for a space of 28 feet. At the place where the crew were intending to spot the car, the dock was 42 inches high and 42 inches distant from the track. There was a clearance of 16 inches between a freight car on the switch track and the dock. The track as it approached the warehouse curved, but it was straight as it crossed a street called Palmer Street, then curved and was again straight as it paralleled the warehouse. The switch track from the main line to the warehouse was about 200 feet in length. The car was moved by the crew out of train 99 to the main track, then to the team track and thence to the spur track leading to the warehouse. There were five cars in the group attached to the engine. Brakeman Kendall suggested that they should not attempt to put the car in on the switch track because that track was covered with ice and that they should take it back to the team track. Accordingly, they moved the group of cars to the team track, at which time deceased told Kendall that he would go into the office and see what they said about it. He there talked to Mr. Mason, General Agent for defendant at Pawhuska, and told him he didn't know whether the car would go in there or not. When he returned he told Kendall that they "had to take the car back to be spotted," and Kendall spoke to conductor McElwee, who also said they would have to put the car in at the warehouse. The cars were then backed in slowly on the switch track. Deceased had called upon McElwee to go with them, which he proceeded to do. Usually the conductor did not help with the switching movements at Pawhuska. The switch list is given to one of the brakemen acting as switchman — in this case, Ramsouer — and he handles the switching and does not go to the conductor unless there is something unusual, but here he called on the conductor. McElwee testified that he was in charge and said, "I am responsible and I look to Mr. Ramsouer to spot the car." McElwee stayed on the street crossing, while Ramsouer went down ahead of the car to the dock. The car was the leading car, farthest from the engine. Ramsouer was near the building referred to as the feed house. McElwee was near the switch and Kendall was on the other side, passing signals to the engineer. Kendall testified as follows:

"We backed the cars up slow, just barely moving on the track, watching it to see that it was on the rail, and came on back around the curve, and there was a little building there that obstructed the view of Mr. Ramsouer and of Mr. McElwee and Mr. McElwee followed the car on down and as it went I could see Mr. McElwee."

In response to a question as to who followed the car down, Kendall testified: "Mr. McElwee, down to the crossing stayed in sight of Mr. Ramsouer and myself. I couldn't see Mr. Ramsouer, but I was passing signals from Mr. McElwee, the conductor, to the engineer."

McElwee testified as follows: "Mr. Kendall was up on the head and passing signals to the engineer. It was the east car of five cars back from the engine. I was on the crossing west of the Osage Feed Store. I did not go down to the lower end of the track to see what the conditions were. Mr. Ramsouer followed the car on in between the house and the crossing and was in there giving signals. I was repeating them to Mr. Kendall and he was repeating them to the engineer. I was on the north side of the track. It was broad day light. The track is on a curve, and I could not look down the track."

McElwee was standing about 40 feet from the point where deceased received his injuries. Ramsouer went on down the track to the building and went in ahead of the car and walked between the platform and the car, giving his signals...