St. Louis Southwestern Ry. Co. v. Ferguson

• Decision Date: 04 August 1950
• Docket Number: No. 13936.,13936.
• Citation: 182 F.2d 949
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. FERGUSON.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F.2d 949 (1950)

ST. LOUIS SOUTHWESTERN RY. CO. v. FERGUSON.

No. 13936.

United States Court of Appeals Eighth Circuit.

June 23, 1950.

Rehearing Denied August 4, 1950.

Wayne Ely, St. Louis, Mo. (John W. Murphy, St. Louis, Mo., with him on the brief), for appellant.

Paul R. Brown, Chicago, Ill. (Jerome F. Duggan and Carl M. Dubinsky, St. Louis, Mo., with him on the brief), for appellee.

Before JOHNSEN and COLLET, Circuit Judges, and HARPER, District Judge.

JOHNSEN, Circuit Judge.

Ferguson, a switchman, recovered a verdict and judgment against his employer, St. Louis Southwestern Railway Co., for injuries resulting from a violation of a provision of the Safety Appliance Act of March 2, 1893, 27 Stat. 531, 45 U.S.C.A. § 2. He claimed to have been injured because a coupler on a freight car, after being duly set, had failed to couple automatically on impact.

45 U.S.C.A. § 2 provides that "It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

The principal contention here is that the evidence was insufficient to establish a violation of the Act. The case was tried prior to the recent opinions of the Supreme Court in O'Donnell v. Elgin, Joliet & Eastern Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L. Ed. ___, Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. ___, and Affolder v. New York, Chicago & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. ___.

The accident occurred at night in the Company's yards at Pine Bluff, Arkansas. A freight train was being made up by shunting a number of strings of cars together on a side track. It was plaintiff's duty to see that the various strings properly coupled with each other. The first string had consisted of 38 cars. Plaintiff testified that before the second string was sent in he looked at the end car of the first string and with the aid of his lantern assured himself that the knuckle of its coupler was open. This was a Western Fruit Express refrigerator car. He further said that as the second string came rolling in, at a speed of 2 to 3 miles per hour, he similarly made observation of its lead car and saw that its coupler also was open. This was an Illinois Central car. That the coupler on this car was open was corroborated by another member of the switching crew, who testified that he had properly set it before the string was shunted up the track. It was agreed that all that normally was supposed to be done to make two cars couple on impact was to have the knuckle on either of them, or on both of them, sufficiently open when the cars came together.

According to plaintiff's testimony, when the IC car came in contact with the WFE car, their couplers failed to "make" but instead the knuckle of each "butted" or closed. The impact caused the slack in the first string of cars to be taken up, so that the IC car and the WFE car were left standing several feet apart. Plaintiff thereupon undertook to reopen the knuckle on the IC car, by lifting the lever on the end of the car which was intended to make this operation possible without going between the rails. The lever however would not "jiggle" the knuckle open, and so he stepped into the space between the ends of the two cars and opened the knuckle manually. He claimed that while he was so doing he noticed that the drawbar or shank of the coupler was out of line, and he thereupon pulled it back an inch and a half or more to straighten its position. Just as he finished doing this, a third string of cars was shunted against the second, causing the latter to be impacted once more against the first and resulting in plaintiff being knocked down and run over by the IC car.

The evidence for defendant showed that on this impact the IC car and the WFE car duly coupled, and this fact was not disputed. A switchman who checked the mechanical action of the couplers after the accident testified that all the parts appeared to be working properly at that time. No repairs had been made or been necessary on either coupler since its installation. Both couplers remained continuously in service after the accident, including their going out immediately on the freight train which had been in process of assembly at the time.

There further was testimony by experts that it was impossible for the drawbar or shank on the IC car to have been out of line, as plaintiff claimed, since the coupler had an automatic gravity centering device, and that, even if a misalignment of 1½ inches had been present, this would not have been capable of keeping the knuckles on the two cars from engaging and coupling.

On this and other evidence of comparable significance in its relation to plaintiff's proof, defendant sought to have the trial court rule as a matter of law that there had been no violation of the Act. But under the O'Donnell, Carter and Affolder opinions, as well as the previous decisions of the Supreme Court read in their light, a court may not declare that there has been no violation of the Act, so as to take a case from the jury, where there is substantial evidence, by direct testimony or on probative circumstances, that on the occasion of the accident the coupler had been duly opened but failed to couple automatically upon impact — no matter how absolute is shown to have been the care of the railroad generally or how perfect the performance of the coupler otherwise. In such a situation, it is for the jury to say whether the things which plaintiff's proof shows as occurring constitute the facts; and the railroad's care and diligence, as well as the previous and subsequent working of the coupler, will only have relevancy as they may assist the jury in determining the facts of the accident. If the jury adopts plaintiff's view of the facts, that the coupler upon the specific occasion had been duly opened but failed to couple automatically on impact, then a violation of the Act has been established, and a liability exists provided the violation also is shown to have borne a causal relationship to the injury.

And as to causal relationship, the court in such a case equally has no right to direct a verdict on legalistic refinements between remote and immediate causation. Cf. Carter v. Atlanta & St. Andrews Bay Ry. Co., supra, 338 U.S. 430, 70 S.Ct. at pages 228 and 229. The Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which is the vehicle of suit for injury from a violation of a Safety Appliance Act, gives the employee a recovery right, even though the violation has been only "in part" responsible for the injury. 45 U.S. C.A. § 51. The causal question therefore too must be allowed to go to the jury in every case where there is probative evidence from which it would be rationally possible for any one to be persuaded that the violation has been "a contributory proximate cause" of the injury. Coray v. Southern Pacific R. Co., 335 U.S. 520, 523, 69 S.Ct. 275, 277, 93 L.Ed. 208. The choice between the conflicting theories of causation, each of which is a rational possibility on some probative fact or facts, is one which the jury alone is entitled to make. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L.Ed. 572.

In this connection, it further is to be kept in mind that, since under the proviso in 45 U.S.C.A. § 53 no such thing as contributory negligence will be recognized "where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee," any proof of negligence on the part of an injured employee in a suit predicated on a violation of a Safety Appliance Act is pertinent only to a contention by the defendant that such negligence was the sole efficient cause of the accident and that if in fact there was any violation of the Act such violation could not possibly have been a causative factor in making the injury occur. See Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 34 S.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168; Johnson v. Great Northern R. Co., 8 Cir., 178 F. 643, 102 C.C.A. 89.

Again, since the Act here involved is violated on any occasion that a coupler fails to couple automatically on impact when it has been duly opened, whether or not a specific defect exists in any of the parts, an injured employee is not required to theorize in his complaint upon why the coupler at the time of the accident failed to function in the prescribed manner, nor is he bound to substantiate any theory of specific defect which he may have presumed thus to set out. The fact therefore that plaintiff here had alleged and offered testimony that the drawbar upon the IC car was out of line did not, as defendant argues, limit his right to go to the jury generally upon the questions of violation and proximate cause. The advancing by a plaintiff in a coupler case of a theory of specific defect and his attempt to prove such a particular condition are without any legal effect, such as is the situation under the rule applied generally in negligence cases of res ipsa loquitur. Such pleading and proof are in a coupler case no more than trial tactics, which seek to use concrete explanation as a force of persuasion upon the general questions of violation and proximate cause.

The foregoing principles on proximate cause, contributory negligence and pleading and proof of specific defect are well settled, and we should not feel warranted in restating them here, except that they embrace and answer additional contentions which appellant has made, beyond the question of violation, on why it was entitled to have had its motion for a directed verdict sustained. On the principles set out, the trial court properly denied the motion on all of its grounds.

Another...