Southern Railway Company v. Bryan
| Decision Date | 03 April 1967 |
| Docket Number | No. 23782.,23782. |
| Citation | 375 F.2d 155 |
| Parties | SOUTHERN RAILWAY COMPANY, Appellant, v. Earl N. BRYAN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John David Jones, Thomas B. Branch, III, Atlanta, Ga., Charles J. Bloch, Macon, Ga., Greene, Neely, Buckley & Derieux, Atlanta, Ga., for appellant.
Stanley P. Meyerson, Atlanta, Ga., Alfred D. Fears, Jackson, Ga., Hatcher, Meyerson, Oxford & Irvin, Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.
The railroad is appealing from a judgment rendered in favor of one of its employees in an action for damages for personal injuries brought under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., alleging in separate counts a violation of the Boiler Inspection Act, 45 U.S.C.A. § 23, and common law negligence.
The overall question presented here is whether the issue of liability under the count predicated upon the alleged violation of the Boiler Inspection Act was settled as a matter of law. Each party claimed that it was so settled in his favor. The trial court agreed with the employee, and the count on negligence was withdrawn. The court instructed the jury that the railroad was liable as a matter of law, and submitted to them only the issue as to amount of damages. The railroad insists that it was entitled to judgment as a matter of law on such count, and, in the alternative, that there were issues of fact both as to violation and as to proximate cause that made the action taken by the court reversible error. All the controlling facts material to these questions here involved are undisputed.
On November 8, 1962, the locomotive and several cars of the railroad's passenger train, known as "The Southerner", were derailed and overturned in a collision at a crossing near Eastaboga, Alabama, while the train was enroute from Washington, D. C. to New Orleans. The locomotive came to rest on its side, roughly parallel to the tracks of the main line, but close enough to interfere with rail traffic thereon. It was gutted by fire to the extent that it was inoperative as a locomotive. Bryan, a carman, was a member of a crew that was sent to the scene to rerail the locomotive and cars so that they could be taken to the repair shops. The crew had two boom cars to lift the wrecked equipment back on the track. Cables from the boom cars were attached by means of a clevis to the lifting eye or metal bracket provided for that purpose on each end of the locomotive, so that the crane on one of such cars would be lifting the front while that on the other was raising the back. When the locomotive was off the ground, the cranes could maneuver it into position to be lowered to the tracks on its wheels. The employee, in accordance with instructions, attached one of the cables to the lifting eye on the back end of the locomotive, and then went to the other side of one of the boom cars to keep watch on its wheels to make certain that they did not raise up and come off the tracks during the lifting operation. The lifting could be done either by picking up the cables or by raising up on the booms of the derricks. The latter method, called "booming", was the one used on the occasion here involved. The lifting eye on the rear broke while the locomotive was suspended in the air, with the result that the loosened cable backlashed and a piece of its attaching apparatus hit the employee across the back and injured him while he was down on his hands and knees watching the wheels of his boom car.
A careful consideration of the record has led us to the conclusion that we cannot agree with the railroad's contentions that it is not liable as a matter of law on the grounds that the locomotive was not in use on its line at the time of the injury, that it was exempt from liability during the...
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