Terminal R. Ass'n of St. Louis v. Howell

• Decision Date: 09 January 1948
• Docket Number: No. 13555.,13555.
• Citation: 165 F.2d 135
• Parties: TERMINAL R. ASS'N OF ST. LOUIS v. HOWELL.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F.2d 135 (1948)

TERMINAL R. ASS'N OF ST. LOUIS v. HOWELL.

No. 13555.

Circuit Court of Appeals, Eighth Circuit.

January 9, 1948.

Arnot L. Sheppard, of St. Louis, Mo. (George P. Mueller, of St. Louis, Mo., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Harvey B. Cox, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment against appellant in an action brought by appellee to recover damages under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. We shall refer to the parties as they were designated in the trial court. It is alleged in plaintiff's complaint that on July 2, 1944, while he was in the performance of his duty as a car worker for defendant, assisting in the closing of a car door on a car of defendant in its yards in East St. Louis, Illinois, the car door "was caused to and did fall from the car and did strike, knock down, and seriously injure the plaintiff because and as a result of the negligence, carelessness and unlawful conduct of defendant."

Viewing the evidence in a light most favorable to plaintiff, the jury might reasonably have found substantially the following facts: That at the time of receiving his injuries plaintiff was 43 years of age and had been in the employ of defendant as a car repairman for more than two years and prior thereto had been similarly employed by another railroad company for more than fifteen years. On the date in question he was engaged in repair work which included the closing of box car doors. He was working with and under the supervision of a Mr. DeWolf, who is variously referred to in the record as gang leader, supervisor, foreman or boss. Just prior to the incident resulting in plaintiff's injuries these two men had worked on two box cars, closing open doors on both of them. Mr. DeWolf was in charge of the work. He examined the bad order cards on the cars, and when they came to the car door involved in this action DeWolf preceded plaintiff, looked at the bad order card on the car and determined that it said either, "Car door off track," or "Hanger off track." Neither of these expressions indicated that there was any special danger of the door falling from the car during the operation of closing the door. Pursuant to DeWolf's direction, plaintiff brought a chain jack to be used in attempting to close the door. The door was about half open when plaintiff and DeWolf attached the chain jack which is a device by which tension could be applied to pull the door closed. Plaintiff proceeded to operate the chain jack which applied tension, and pulled the car door part way closed, but as the door had moved about a foot and a half so that it was within 10 or 12 inches from being closed, it stuck at the top. Considerable tension was then put upon it by means of the chain jack but it remained stuck. DeWolf then got up on top of the car for the avowed purpose of seeing what was holding the door back, that being his duty. After looking down from the top of the car toward the door hanging devices, and being within 6 inches of these devices and in position to see them, he called for a small sledge hammer with which he hit the top or end of the door, causing it to move, but further efforts to close it by the chain jack failed. DeWolf hammered on the door to loosen it and plaintiff lightened up the tension on the chain jack. This was repeated a number of times until the door had been moved up to where the bottom of it was against the so-called spark angle, and DeWolf then descended from the top of the car to the ground where plaintiff was working. At that time the door was within an inch of being completely closed and plaintiff was holding light tension on the door with the chain jack. DeWolf then got a small hand pinch bar with which to pry the door edge into the spark angle, and either while he was in the act of getting the pinch bar or after he had gotten it and pried the door, the car door fell from the car and struck plaintiff causing the injuries for which this action was brought. The car door was 6 feet by 6 feet, made of wood and bound with iron, and weighed between 250 and 300 pounds. On the top of the door were two hangers bolted to the door. At the top of these hangers were small metal rollers which rested upon and moved upon a metal track bolted to the top side of the car near the roof. The hangers were such as to conceal the rollers from view of a person on the ground outside the car but they could be seen by one who examined them from the top of the car. The door was normally prevented from coming off the track by metal flanges called guides, being a part of the hanger devices. These guides projected inward and upward behind the door and the metal track upon which the rollers operated. Attached to the side of the car just below the bottom of the door were pieces of metal called shoes, designed to prevent the bottom of the car door from coming out too far from the side of the car but which did not carry any of the weight of the door. The cause of the door falling from the car was that the small rollers which rolled along the car door track were so badly worn that they permitted the metal flanges or guides to come down below and disengage from the track so that they no longer held the door on the track but permitted it to fall outwardly. These conditions could not be observed by a person standing on the ground but could be observed by a person who went up on the top of the car and looked at the hangers from that position.

Plaintiff did not at any time prior to receiving his injuries observe anything defective about the hanging devices at the top of the car door and did not anticipate any danger of the car door falling. He received no warning from DeWolf or otherwise, that the car door was in such condition that it was likely to fall. It was not the duty of the plaintiff but it was the duty of DeWolf to go upon the top of the car to inspect the hanger and other parts of the mechanism by which the door was open and closed. While participating in the work of attempting to close the door plaintiff performed his duty and conducted himself properly pursuant to DeWolf's instructions and in the usual and customary manner. The car in question had been sent to the repair track by one of defendant's car inspectors who had notice that the rear hanger of the car door was off its track and for that reason he placed a bad order card on the door, marking the card to show, "Side Door Off Track." The inspector did not inspect the car, nor did he know that the rollers in the hanger were so worn as to let the car door down to a point where the metal guide behind the door track could disengage and permit the door to fall outward, and he did not put any notice on the bad order card showing that the door was in a dangerous condition.

At the close of all the testimony defendant interposed a motion for a directed verdict on substantially the following grounds: (1) That plaintiff's evidence fails to show any negligence on the part of defendant which was the proximate cause of his injuries; (2) the rule of res ipsa loquitur is not applicable because plaintiff has not shown any specific negligence on the part of defendant; (3) that under the circumstances shown no duty rests upon the defendant to exercise ordinary care to furnish plaintiff with a reasonably safe car upon which to do the work he was engaged in doing at the time of receiving his injuries. This motion was overruled and the cause submitted to the jury on instructions to which defendant saved certain exceptions. The jury returned a verdict for $20,000 in favor of plaintiff and from the judgment entered thereon defendant prosecutes this appeal seeking reversal on substantially the following grounds: (1) ...