Texas and New Orleans Railroad Co. v. Underhill, 15857.

• Decision Date: 08 June 1956
• Docket Number: No. 15857.,15857.
• Citation: 234 F.2d 620,64 ALR 2d 152
• Parties: TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. C. A. UNDERHILL, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

64 ALR 2d 152, 234 F.2d 620 (1956)

TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellant, v. C. A. UNDERHILL, Appellee.

No. 15857.

United States Court of Appeals Fifth Circuit.

June 8, 1956.

Wyndham K. White, El Paso, Tex., Kemp, Smith, Brown, Goggin & White, El Paso, Tex., Baker, Botts, Andrews & Shepard, Houston, Tex., of counsel, for appellant.

Maurice M. Davis, Ft. Worth, Tex., Howard H. Lewis, Denning Schattman, Fort Worth, Tex., Davis, Schattman & Lewis, Fort Worth, Tex., of counsel, for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment following a jury's verdict in favor of the plaintiff below for injuries allegedly received by him from a fall off of a freight car, which he claimed resulted from a faulty coupling. It was brought under the Safety Appliance Act.¹

The car on which the plaintiff was riding rammed into the diesel engine that was supposed to be pulling it with such force as to throw him to the ground. The essential question for the jury to pass on was whether the car became uncoupled after having once been automatically coupled or whether no coupling was ever made due to the negligence of the plaintiff in aligning the parts. If the former, then such uncoupling would make the railroad liable for its failure to have couplers which, after a secure coupling was effected, would remain coupled until intentionally released; if the latter, then the defendant would not be liable for the injury.

All of the facts except as to the actual connection made upon the intended coupling of the cars are without substantial dispute.

On the night of August 12, 1953, plaintiff was employed as a brakeman on one of the defendant's freight trains, traveling east from El Paso. At about 9:00 P.M. it stopped at Sierra Blanca, and after some routine switching, the engine disengaged from the train and backed into a siding to take on a box car and two tank cars. It backed into the box car and the plaintiff let the handbrake off the car. According to his testimony, he then checked the coupling with his light, climbed onto the back of the box car and gave the back-up signal. After the engine backed up approximately one and a half or two car lengths, he gave the easy signal, for the purpose of stretching the coupling. With the application of the engine's brakes, the plaintiff felt the box car slow down and start to stop as the slack ran out. At this point he gave another back-up signal and the engine and car coupled onto three tank cars. After cutting off the third tank car, which was not needed, and releasing the brakes on the other two, he signalled the engineer to move forward and felt the car jerk as they started out. Once they were under way he signalled for an increase in speed and for the cars to proceed on out on the main line. The cars picked up speed and as they were going 20 to 25 miles an hour the plaintiff felt the car on which he was riding hit the other cars. He was thrown to the ground and suffered the injuries complained of. Other testimony established that the cars struck one another as a result of the box car becoming separated from the engine and then ramming against it.

The railroad's defense was that the sole proximate cause of the cars striking the engine was the plaintiff's failure to make a proper coupling and to insure that the coupling was joined by stretching the coupling properly, as required by the operating rules, i. e., by having the engine move forward to test it immediately after the engine and the box car first met. The plaintiff answered that he did actually make a proper coupling and thus it was unimportant that he did not test it in the manner set forth in the rules. On appeal, the railroad does not contend that the jury could not have accepted the plaintiff's testimony that he stretched the coupling and that it was joined, but rather that the issue was submitted to the jury on erroneous instructions. It also contends that the court prejudiced the railroad by its ruling and comments in excusing a venireman, and that the court erred in not setting the verdict aside when it appeared that the jury might have been improperly influenced by conversations with members of the jury by a spectator at the trial.

It was admitted by the appellee that he did not stretch the coupling in the manner required by the rules.² While it is true that a failure to perform an act required by the rules may, under certain circumstances, be the sole proximate cause of an injury, we think this could not be the case here. The stretching procedure is not necessary to make a coupling, but to test it. If in fact a good coupling was made, the stretching would have demonstrated that fact. Since the jury must have found that the plaintiff did in fact make a good coupling, it cannot be said that a failure to test it was the proximate cause of plaintiff's injury.

The instruction objected to is as follows:

"The court charges you that plaintiff\'s suit is not based upon negligence and therefore in determining whether the cars became uncoupled from the engine you will not consider whether the railroad company, the defendant in this case, was negligent. In other words, the condition of the couplers before and after the accident is immaterial; the question for you to determine being as to whether or not you find from a preponderance of the evidence that the cars came uncoupled from the engine, and the fact that after the accident an inspection revealed no actual defect in the couplers is not material if you find from a preponderance of the evidence that they actually became uncoupled as alleged by plaintiff, and that such uncoupling, if any, was the direct and proximate cause of the plaintiff\'s injuries."

The railroad introduced evidence that the couplers were inspected after the accident and found in good working order, and urges that the charge of the court in effect struck this evidence from the jury's consideration.

A reading of the charge shows that the court, did, although probably inadvertently, include an erroneous statement, which may have been explained subsequently. As the real question for the jury's determination was whether a coupling was in fact made, it could not be the law that the evidence offered by the defendant to the effect that the couplers were not defective immediately after the event was immaterial. It was quite material in enabling the jury to decide whether the plaintiff's testimony that he had made a good coupling was credible. It was, of course, immaterial as bearing on the question of negligence,³ which is undoubtedly the thought the...