Swinson v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 01 August 1934
• Docket Number: No. 9965.,9965.
• Citation: 72 F.2d 649
• Parties: SWINSON v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F.2d 649 (1934)

SWINSON v. CHICAGO, ST. P., M. & O. RY. CO.

No. 9965.

Circuit Court of Appeals, Eighth Circuit.

August 1, 1934.

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellant.

Warren Newcome, of St. Paul, Minn. (William T. Faricy, of Chicago, Ill., and Alfred E. Rietz, of St. Paul, Minn., on the brief), for appellee.

Before GARDNER and SANBORN, Circuit Judges, and DEWEY, District Judge.

SANBORN, Circuit Judge.

The parties will be referred to as in the court below. Swinson brought this action under the Federal Employers' Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 66, 45 U. S. C. § 53 45 USCA § 53) to recover for personal injuries, alleging a violation of the provisions of the Safety Appliance Acts relating to handholds (Act of March 2, 1893, c. 196, § 4, 27 Stat. 531, 45 U. S. C. § 4 45 USCA § 4) and running boards (Act of April 14, 1910, c. 160, § 2, 36 Stat. 298, 45 U. S. C. § 11 45 USCA § 11). The defendant denied liability. Upon the trial, at the close of the evidence, the court directed a verdict for the defendant, and from the judgment entered thereon this appeal is taken.

The plaintiff's evidence tended to show that, at the time of the accident, he was a freight brakeman employed by the defendant and engaged in interstate commerce; that the accident occurred on September 17, 1932, at about 9 o'clock p. m., at Mitchell, S. D.; that he was releasing a tight brake at the west end of a tank car which was in a train moving slowly westward; that the tank car was equipped with running boards 11 inches wide, which extended around the sides and ends of the tank; that the brake which he was releasing was in the middle of the end running board — that is, equidistant from its east and west edges — and about 34 inches from its north edge, the board being 9 feet long and 1¾ inches thick; that the car was equipped with end handholds which were bolted to the under side of the end running board and extended horizontally or outwardly; that one of the handholds was near the north end of the west edge of the running board, and 1¾ inches, or the thickness of the board, below its upper surface; that in releasing the brake the plaintiff placed his left foot on the running board adjacent to the pawl of the brake, and his right foot upon this handhold, which was 18 or 20 inches long and extended 2½ to 4 inches beyond the edge of the board; that he exerted pressure in releasing the brake; that as the brake released, the bolt, which held the outer or north end of the handhold to the running board, pulled through the board, causing him to fall to the track; that after the accident the wood of the board where the bolt had pulled through looked old, decayed, and was split; that it was customary for brakemen to place their feet on handholds of this type when releasing brakes, and to use such handholds for steps in going from one car to another.

The defendant's evidence tended to show that the handhold in question was a rounded iron bar about 5/8 of an inch in diameter; that it extended about 2¾ inches beyond the edge of the board; that the most northerly bolt hole was 2¼ inches from the north edge of the board, and both bolt holes were 1¾ inches from the west edge of the board; that it was 42 inches from the ground to the surface of the running board; that these end handholds were no part of any ladder or steps leading from near the ground to the running board; that they were intended to be used and were used as handholds and only for the protection of employees going between the ends of cars; that, under the order of the Interstate Commerce Commission, they could extend either horizontally or vertically; that about 90 per cent. of such cars were equipped with those extending vertically; that when the handholds extended vertically from the running board, they could not be used as footholds or foot braces in setting or releasing brakes; that it was not usual or customary for trainmen to use them for any purpose except as handholds.

It is, of course, conceded that the defendant was under the absolute duty of maintaining this handhold in a secure condition for the purpose for which it was intended, and that any employee who, while using it for its intended purpose, was injured as a result of its being defective for that purpose, could recover. It is contended, however, that since Swinson was using this handhold as a foothold, foot rest or foot brace, the defendant owed him no duty to furnish him a handhold sufficient for that purpose or any handhold at all, and that he was in no better position in using a defective handhold for a foothold than he would have been in had there been no handhold and had he been injured in groping for a nonexistent handhold with his right foot. It is also contended that there was no evidence that there was any violation of the Safety Appliance Acts, since proof that the handhold was insufficient as a foothold did not establish that it was not secure for the purpose for which it was intended.

It would, of course, be true that if the defendant furnished and maintained a handhold adequate for its intended purpose, it was not guilty of any violation of the Safety Appliance Act. Erie R. Co. v. Lindquist (C. C. A. 3) 27 F.(2d) 98; Lehigh & N. E. R. Co. v. Smale (C. C. A. 3) 19 F.(2d) 67; Ford v. New York, N. H. & H. R. Co. (C. C. A. 2) 54 F.(2d) 342, 343. Hence, if the pulling out of the handhold was due to no inadequacy for its intended purpose, but solely to its inadequacy for a use not intended, there would be no breach of duty upon which to base a claim of liability. However, we are of the opinion that there was sufficient circumstantial evidence as to the strain to which it was subjected and the condition of the board after the accident to justify the conclusion that the handhold was defective for the purpose for which it was intended.

We are convinced, however, that this handhold was not intended for use in the way it was used by Swinson, nor was it suitable for such use, nor was the defendant required to anticipate that it would be so used. Swinson seems to have demonstrated that it was physically possible to use the handhold in that way, but, at best, it obviously would furnish an insecure foothold or foot brace to a man with his feet spread some thirty inches apart and struggling to release a tight brake on a moving train.

We think this case must be dealt with on the basis that the handhold was defective as a handhold, that its giving way caused Swinson to fall, but that, at the time he was using it, he was using it in a way and for a purpose for which it was not intended or required, and that the accident was not one which might reasonably be expected to happen from a failure to furnish or to maintain a secure end handhold.

The court below was of the opinion that, under such circumstances, Swinson could not recover. The plaintiff contends that, having shown a violation of the provision of the Safety Appliance Act relating to handholds (the violation of the provision relating to running boards is not now urged), and having shown that it was the giving way of the defective handhold which caused his injury, the violation must be regarded as the proximate cause of the injury, and that therefore he can recover.

We do not find that the precise question has been decided by the Supreme Court, and, until it is, there is bound to be some uncertainty as to the correct rule to apply to this situation. See dissenting opinion in Lang, Admx., v. New York Central R. Co., 255 U. S. 455, 461, 41 S. Ct. 381, 65 L. Ed. 729.

We know that a violation of the Safety Appliance Acts imposed an absolute liability upon the defendant in favor of any one of the class for whose benefit these statutes were enacted and who was injured as a result of such violation. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, Admx., 210 U. S. 281, 295, 28 S. Ct. 616, 52 L. Ed. 1061; Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559, 570, 31 S. Ct. 612, 55 L. Ed. 582; Texas &...