Trout v. Pennsylvania Railroad Company

• Decision Date: 16 March 1962
• Docket Number: No. 13729.,13729.
• Citation: 300 F.2d 826
• Parties: Nelson H. TROUT, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

300 F.2d 826 (1962)

Nelson H. TROUT, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.

No. 13729.

United States Court of Appeals Third Circuit.

Argued January 26, 1962.

Decided March 16, 1962.

COPYRIGHT MATERIAL OMITTED

Jack E. Feinberg, Philadelphia, Pa. (B. Nathaniel Richter, Kenneth Syken, Richter, Lord & Levy, Philadelphia, Pa., on the brief), for appellant.

F. Hastings Griffin, Jr., Philadelphia, Pa. (Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, STALEY and SMITH, Circuit Judges.

STALEY, Circuit Judge.

Nelson H. Trout brought an action under both the Safety Appliance Act, 45 U.S.C.A. § 1 et seq. ("SAA"), and the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. ("FELA"), to recover damages for personal injuries sustained while he was attempting to brake a car in the course of his employment for defendant Pennsylvania Railroad Company. The district court granted defendant's motion for a directed verdict on the SAA claim on the basis that plaintiff failed to establish that the brake proved inefficient while being operated in a normal, natural and usual manner. The jury returned a verdict for defendant on the FELA claim. The plaintiff's basic complaint is that there was enough evidence in the record to require sending the SAA claim to the jury.

In Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615 (1947), the Supreme Court made it clear that a jury question is presented under the SAA if the evidence is such that it can be reasonably concluded that the brake failed to operate efficiently while being operated in the natural, normal and usual manner, thereby causing injury to plaintiff. There is no need for plaintiff to show anything more, and negligence is an irrelevant consideration. We think that here there was enough evidence in the record to require submission to the jury.

The plaintiff testified that while braking the car, as he was required to do, he pumped the brake eight or nine times. The brake was pumping firm and returning hard, as is usual, when he decided to give it one more pump to make certain that the brake held. While doing so, the brake pump handle unexpectedly returned without resistance, thus causing him to be thrown back against the edge of the car. In response to questions by his counsel, plaintiff attempted to explain why he was thrown back against the car when he said: "All of a sudden the chain busted or dirt got in the cogs or something that took place that it just left loose, there wasn't no leverage there." He later gave similar testimony when questioned by the court. Upon cross examination by defendant's counsel, plaintiff again testified that the brake was defective. From this evidence, the jury reasonably could have concluded that the plaintiff was operating the brake in a normal, natural, and usual manner, and that the brake was inefficient. The fact that plaintiff did not expressly testify that he was operating the brake in a normal, natural, and usual manner is unimportant, for as this court said in Draper v. Erie Railroad Co., 285 F.2d 255, 256 (C.A.3, 1960), "The plaintiff's description of what he actually did under the circumstances could not have been helped by a statement from him or anybody else that he was operating in the usual and ordinary manner." It is true that plaintiff testified that the brake operated properly immediately prior to the accident, and it appears that this fact was relied on by the district court. But it has been said many times, and most recently by us in Zimmerman v. Montour Railroad Co., 296 F.2d 97 (C.A.3, 1961), that the duty imposed by the SAA is an absolute one, requiring performance on the occasion in question.

In submitting the FELA claim to the jury, the district court required it to answer certain interrogatories. One of them was as follows:

"Was plaintiff injured on August 20, 1957, because of

"(a) an inefficient brake?

"(b) a defective brake handle?"

The jury answered no to both parts of the question. Defendant argues that in effect the SAA claim was thus submitted to the jury and the grant of a directed verdict, if erroneous, was thereby cured. The plaintiff, however, says that the interrogatory was meaningless, for the district court failed to charge the jury on the SAA claim, limiting the charge solely to the claim of negligence. A careful reading of the charge indicates that this was so. Of course, we agree that under that circumstance the interrogatory was of no avail.

The district court was under a duty to separate the two causes of action and to make it clear to the jury that neither evidence of negligence nor due care could be considered in determining defendant's liability under the SAA. O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949). Measured by this standard the charge was totally inadequate. In it, the district court never referred to the two different theories of recovery. The jury was not instructed as to the quantum of proof required under the SAA. The court denied every point for charge dealing with the SAA claim. That, of course, was consistent with what the district court said in a colloquy with counsel shortly before the charge. It indicated that the SAA claim was out of the case and the jury would not be charged on it and that the interrogatory, if it had no other purpose, would be useful in resolving the question of negligence. Furthermore, in closing argument, neither counsel ever referred to the SAA claim and concentrated exclusively on negligence.

The plaintiff also calls to our attention several alleged procedural errors that require discussion. In charging the jury, the district court said: "* * * We must all have sympathy for this plaintiff; of course, we have sympathy...