St. Louis Southwestern Railway Company v. Williams

• Citation: 397 F.2d 147
• Decision Date: 12 August 1968
• Docket Number: No. 25302.,25302.
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. Glen WILLIAMS, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

397 F.2d 147 (1968)

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. Glen WILLIAMS, Appellee.

No. 25302.

United States Court of Appeals Fifth Circuit.

June 14, 1968.

Rehearing Denied August 12, 1968.

Jack W. Flock, Clyde W. Fiddes, Roy P. Cosper, Mike A. Hatchell, Tyler, Tex., for appellant; Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, Tex., of counsel.

Franklin Jones, Jr., Frank Jones, Sr., Jones, Jones & Baldwin, Marshall, Tex., for appellee.

Before RIVES, BELL and GOLDBERG, Circuit Judges.

RIVES, Circuit Judge:

Appellee-plaintiff sued under the Federal Employers' Liability Act,¹ the Safety Appliance Act,² and the Boiler Inspection Act.³ He recovered a verdict and judgment in the amount of $85,000.00, solely upon the theory of absolute liability imposed by the Boiler Inspection Act. The appellant-defendant urges that the district court erred: (1) in submitting the case to the jury on the theory of a violation of the Boiler Inspection Act; (2) in failing to instruct the jury that it could not award damages resulting from a separate intervening cause; and (3) in failing to grant defendant's motion for new trial because of excessive damages.

The plaintiff was a student switchman. His job required that he ride on one of the steps of the engine and jump off and throw switches to direct movement onto the proper track, and then remount one of the engine steps.

On the night of his accident, while plaintiff was waiting for the engineer, he observed oil on the cab of the engine and on the running board — "just black oil — diesel oil I guess — blows out of those engines." He did not look at the steps at that time. As he began work he rode the rear step and had no difficulty. Several hours later when he had occasion to remount on the front step, he slipped and noticed that there was oil on that step. Plaintiff testified that as they approached the next switch, "He was slowing down, and I leaned off and gave him a stop signal and started to get off, and when I did I stepped with my right foot, and my left foot slipped off and my hand I lost the grab iron hold."

"Q. What did your left foot slip on?

"A. Oil on the steps.

* * * * * *

"Q. Did the presence of the oil on that step make it a hazard and unsafe to a man getting on and off of it?

"A. It sure did.

"Q. What happened when you stepped off that time and slipped?

"A. I fell and turned my ankle, and it popped like everything. So, I just laid there a few minutes and Mr. Savage — the engine didn\'t move very far. It stopped in just a minute."

After showing the engineer the oil on the step, the plaintiff attempted to continue working, but his ankle was swollen and hurt so that he was relieved by C. R. Strother, another switchman. Strother testified that when he relieved plaintiff, he looked at the right front step of the engine and observed oil on it, "it was just oily and unsafe to work with right at that time." Neither the plaintiff nor the defendant offered direct evidence as to the source of the oil nor how long it had been on the step. However, we think that the jury could draw an inference from the presence of oil on the cab of the engine and on the running board when it was turned over to plaintiff's crew and from the defendant's failure to offer the testimony of an employee who should have known whether the engine was clean at that time.⁴

Discussion of the extent of plaintiff's injuries is postponed until we reach the question of excessive damages.

Application of the Boiler Inspection Act.

The Boiler Inspection Act provides in pertinent part:

"It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb * * *." 45 U.S.C.A. § 23.⁵

In determining whether the jury could properly find that the presence of oil on the step of the locomotive constituted a violation of that section, the construction and meaning of the Supreme Court's decision in Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411, is crucial. Prior to that decision, the cases of Ford v. New York, N. H. & H. R. Co., 2nd Cir. 1931, 54 F.2d 342, and Reeves v. Chicago, St.P., M. & O. Ry. Co., Minn.1920, 147 Minn. 114, 179 N.W. 689, were clearly in favor of the defendant's position. Those cases were considered by the Supreme Court in Lilly, supra, but the defendant urges that, instead of disapproving the holdings as no longer the law, the Supreme Court distinguished them solely on the basis that they did not involve a violation of an applicable regulation of the Interstate Commerce Commission. The Court's language, in our opinion, shows that it not only distinguished the Ford and Reeves cases, but that it also disapproved their holdings.

"From various cases denying recovery under the Act, respondent attempts to extract a general rule that the Act covers only defects in construction or mechanical operation and affords no protection against the presence of dangerous objects or foreign matter.7

But there is no warrant in the language of the Act for construing it so narrowly, or for denying the Commission power to remedy shortcomings, other than purely mechanical defects, which may make operation unsafe. The Act without limitation speaks of equipment `in proper condition and safe to operate * * * without unnecessary peril to life or limb.\' Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb. Whatever else may be said about the cases relied upon by respondent, they are sufficiently distinguishable in that they either did not involve or did not consider Rule 153 or any comparable regulation."

"7 Ford v. New York, N. H. & H. R. Co., 2 Cir., 54 F.2d 342 (grease on a locomotive grab-iron held no violation of Safety Appliance and Boiler Inspection Acts); Reeves v. Chicago, St. P., M. & O. Ry. Co., 147 Minn. 114, 179 N.W. 689 (presence of coal upon a step leading to the locomotive cab held no violation of Safety Appliance and Boiler Inspection Acts); Slater v. Chicago, St. P., M. & O. Ry. Co., 146 Minn. 390, 178 N.W. 813 (holding no cause of action under Safety Appliance Act for injuries caused by an ice bunker displaced by a trespasser so it projected upon the running board); Chicago, R. I. & P. Ry. Co. v. Benson, 352 Ill. 195, 185 N.E. 244 (Safety Appliance Act held not violated by wrapping wire around grab-irons); Harlan v. Wabash Ry. Co., 335 Mo. 414, 73 S.W.2d 749 (failure of fellow employees to close a trap door in the cab over the stoker held no violation of the Boiler Inspection and Safety Appliance Acts); Riley v. Wabash Ry. Co., 328 Mo. 910, 44 S.W.2d 136 (holding no cause of action existed under Boiler Inspection Act for injuries sustained because a clinker hook was misplaced on a tender top by a fellow servant).

317 U.S. at 487, 488, 63 S.Ct. at 352.

The injury in Lilly was caused by ice which had formed on the tender of the locomotive. In answer to a special interrogatory, the jury found that formation of the ice was not due to any mechanical defect in the engine. The Supreme Court construed Rule 153 of the Interstate Commerce Commission as "requiring the top of the tender to be kept free of foreign matter which would render footing insecure, for example, coal, dust, debris, grease, waste water, and ice." 317 U.S. at 486-487, 63 S.Ct. at 351. The defendant insists that the Court's actual holding in Lilly is restricted to foreign matter on a locomotive, the presence of which violates an administrative rule or regulation which has become a part of the Boiler Inspection Act, and urges upon us a consideration of the legislative history of the Act⁶ which it insists shows that the purpose of the Act is limited to defects in the design or construction of the locomotive and to equipment which has become mechanically defective. Again, however, we think that the holding in Lilly cannot be so narrowly construed. A broader holding is indicated by the passage which we have quoted and also by the Court's language both immediately before and immediately after discussing ICC Rule 153. Preceding such discussion, the Court stated:

"The use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems to us to involve `unnecessary peril to life or limb\' — enough so as to permit a jury to find that the Boiler Inspection Act has been violated. Fortunately, we are not left wholly to our own resources in construing the Act in the light of its humanitarian purpose. The Interstate Commerce Commission has set the standard here by promulgating a rule (No. 153) * * *." 317 U.S. at 486, 63 S.Ct. at 351.

After discussing the rule, the Court said: "* * * the rule only fortifies a result which we think the jury could probably have reached even in the absence of such a rule." 317 U.S. at 489, 63 S.Ct. at 352.

Our interpretation of the holding in Lilly is sustained by the thoroughly considered case of Calabritto v. New York, New Haven & Hartford R. Co., 2nd Cir. 1961, 287 F.2d 394. There Judge Clark said:

"If the Commission had enacted a rule requiring engine platforms to be kept clear of slippery substances, clearly the jury could have concluded that an engine platform made slippery by sand and oil was in an unsafe condition within the meaning of § 23. The absence of such a rule, which would only be declaratory of common sense, can make no difference to the jury\'s right to reach such a conclusion. It would be indeed an anomaly to require enforcement of a Congressional mandate for safe railroad equipment to depend upon the action or nonaction of an administrative agency." 287 F.2d at 396.

Judge Friendly reluctantly concurred, stating:

"If

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