Tinnon v. Missouri Pacific Railroad Company

• Decision Date: 11 October 1960
• Docket Number: No. 16195.,16195.
• Citation: 282 F.2d 773
• Parties: W. H. TINNON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F.2d 773 (1960)

W. H. TINNON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.

No. 16195.

United States Court of Appeals Eighth Circuit.

October 11, 1960.

Thomas B. Tinnon, Mountain Home, Ark., filed brief and made argument for appellant.

Herschel H. Friday, Jr., Little Rock, Ark., filed brief and made argument for appellee.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This plaintiff was a locomotive engineer. He brought this diversity action against his railroad for damages for his discharge from employment in November 1955. The railroad's defense is that plaintiff's dismissal from service was based upon just and sufficient cause. The case was submitted to a jury. It was unable to reach a verdict and was discharged. The railroad, which had moved for a directed verdict at the close of the evidence, then moved, under Rule 50(b) F.R. Civil Proc., 28 U.S.C.A., for judgment in accordance with its motion for a directed verdict. This was granted and judgment was entered. The appeal is from that judgment.

The trial court's opinion, found at 167 F.Supp. 675, is detailed. It sets forth (a) the facts, few of which are disputed, (b) Article 44 of the collective bargaining agreement, effective September 1, 1930, and in effect during November 1955, between the railroad and the Brotherhood of Locomotive Engineers, and (c) those pertinent provisions of the 1950 revision of the Uniform Code of Operating Rules under which the defendant's two trains here involved were operating when the events leading to the plaintiff's discharge took place on November 7, 1955. Reference is therefore made to that opinion for the verbatim content of Article 44 and of those rules and for many of the factual details.

It may be stated in summary, however, that on the morning of November 7, 1955, plaintiff was the engineer on defendant's train No. 260, consisting of a diesel, 55 cars, and a caboose, which was proceeding northwestward from Cotter, Arkansas, toward Crane, Missouri; that defendant's passenger train No. 221, classified as "superior" to No. 260, was proceeding in the opposite direction through the same area; that the road was single track and without block signals or automatic control devices; that each of the two trains received notice of the presence of the other in the vicinity; that the passenger was ordered to wait at Bergman, Arkansas, until 9:05 a. m. for No. 260 and, if it had not then arrived, in Zinc, Arkansas, the next station 6.95 miles southward along the line, until 9:20 a. m.; that plaintiff in his diesel passed the Zinc station at 8:43 a. m., which gave him 17 minutes to reach Bergman and to effect the necessary clearance of the track, required under the rules, by 9:00 a. m., or 5 minutes before No. 221's release time at that point; that the passenger reached Bergman before nine and stopped north of the depot there and also north of the switch or fouling point into the Bergman siding; that between Zinc and Bergman plaintiff encountered two places where the track was moist from frost; that as a result his diesel's driving wheels slipped and he lost both speed and time; that although he was aware of this difficulty, he did not uncouple his diesel, leave his train and proceed ahead to Bergman with a brakeman to do the necessary flagging there but, instead, proceeded with his train to that station; that the approach at Bergman was clear and unobstructed for some distance; that plaintiff could see No. 221 standing still north of Bergman; that No. 260 was able to enter the siding through an empty team track at a point further south than the fouling point where the passenger stood; that by 9:00 a. m. the diesel and some cars of the freight were already on the siding and the train itself was proceeding into it; that the freight finally cleared the main track at 9:03½ a. m., 90 seconds before the passenger's release time; that the passenger's crew saw the freight and one of its brakemen aligned the switches so the freight could "go right on through"; that plaintiff did not place a brakeman-flagman on the ground at the team track switch he used to get off the main track; and that his brakeman, however, was in the door of the locomotive and prepared to flag.

The rules, which were introduced in evidence, and the pertinency of which is not questioned by the parties, are to the following effect: Rule S-89^* (being applicable to a single track situation such as was here involved) requires an inferior train to clear the time of an opposing superior train not less than 5 minutes before the latter's leaving time. Rule 87, obviously recognizing that a situation may arise where compliance with this 5 minute rule is not possible, provides that where the inferior train fails to clear the superior one within the time, "it must be protected at that time as prescribed by Rule 99". Rule 99 is the Flagging Rule. It has to do with proper protection, through observation, fusees, torpedoes and flagging, in a situation where one train may be overtaken by another. Rule 99(b) provides that "When necessary, the front of the train must be protected as prescribed by Rule 99 by the forward trainman or by an engine man. The engineer will require such protection ahead immediately". Rule D requires employees to report any violation of the rules or any practice which imperils safety. Rule 107 places upon both the engineer and the conductor responsibility for the safety of the train, for observation of the rules, and for taking "every precaution for protection". Rule 108 states that "in case of doubt or uncertainty, the safe course must be taken". Rule 215 relates to the checking of orders and their knowledge and clearances by the train crews and, in particular, states that if there is any misunderstanding it "must be immediately corrected, even if necessary to annul such order and issue another".

It was admitted by the pleadings that Article 44 of the collective bargaining agreement provides that no engineer shall be discharged "without just or sufficient cause".

An assistant superintendent of the defendant happened to be a passenger on No. 221 on November 7, 1955, and he observed the apparent lack of compliance by No. 260 with the 5 minute rule. A formal investigation, as is required by the collective bargaining agreement, was held at Bergman on November 11. After that hearing the plaintiff was dismissed from service.

We note preliminarily that there apparently arises in this case no question of the plaintiff's exhaustion of the administrative remedies available to him under the contract between the railroad and his Brotherhood or under § 3 First (i) of the Railway Labor Act, now found as 45 U.S.C.A. § 153 First (i), and that, therefore, the issue, often encountered and dependent upon state law, as to whether plaintiff's pursuit of these remedies is a prerequisite to his damage action for discharge is not present here. Compare Moore v. Illinois Central R. Co., 312 U.S. 630, 636, 61 S.Ct. 754, 85 L.Ed. 410; Transcontinental & Western Air v. Koppal, 345 U.S. 653, 660-662, 73 S.Ct. 906, 97 L.Ed. 1325, and Mayfield v. Thompson, Mo.App., 262 S.W.2d 157.

The plaintiff's right to damages in a case such as this, however, is dependent, as this court has described it, upon "state contractual concept and remedy", Smithey v. St. Louis Southwestern R. Co., 8 Cir., 237 F.2d 637, 638, and a railroad employee can recover damages for discharge from his employment only "if the state courts recognize such a claim", Transcontinental & Western Air v. Koppal, supra, at page 661 of 345 U.S., 73 S.Ct. at page 910. This brings us then to the questions (a) as to which state law is applicable here, and (b) as to what that law is.

The conflict of laws rules of the state where the federal trial court sits are to be applied in diversity cases. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 503, 61 S.Ct. 807, 85 L.Ed. 1116; Hablas v. Armour & Co., 8 Cir., 270 F.2d 71, 75. But the parties are in disagreement as to whether, under the Arkansas conflict rules, as applied to the facts of this case, the substantive law of Missouri or the substantive law of Arkansas is to govern. The plaintiff argues that it is the law of Missouri which controls. He urges that he was a resident of Crane, Missouri, when he underwent his preliminary employment examinations and began working for the railroad in 1910; that his employment contract therefore was and is a Missouri contract; that at that time there was a collective bargaining agreement in effect between the defendant and a Brotherhood; that a substantial part of his work was performed in Missouri for a time; that his employment with the defendant has been continuous ever since 1910; that it was not interrupted by a short suspension in 1949; and that his move to Cotter, Arkansas, in 1915 or 1916 and his residence there ever since was a voluntary act on his part and has not affected the Missouri character of his employment contract. The defendant asserts, on the other hand, that it is the law of Arkansas which applies. In support of this position it stresses the plaintiff's residence in that state continuously since 1915 or 1916; the inception of his train runs there; the site of the incidents in question at Bergman in that state (suggesting that the substantive law of the place of performance must govern); the fact that the plaintiff was a resident of Arkansas when his employment became operative under the 1930 collective bargaining agreement upon which he relies; the termination of plaintiff's employment by dismissal in 1949; and what it claims to be a new employment of him by the railroad eight months later.

The trial court did not attempt to resolve this question but concluded that, irrespective of which law applies, the result, although for different reasons, was the same. While it might be desirable in most c...