Waylander-Peterson Co. v. Great Northern Ry. Co.

• Decision Date: 20 January 1953
• Docket Number: No. 14674.,14674.
• Citation: 201 F.2d 408
• Parties: WAYLANDER-PETERSON CO. v. GREAT NORTHERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F.2d 408 (1953)

WAYLANDER-PETERSON CO. v. GREAT NORTHERN RY. CO.

No. 14674.

United States Court of Appeals Eighth Circuit.

January 20, 1953.

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Wright W. Brooks, Minneapolis, Minn. (Faegre & Benson and Paul J. McGough, Minneapolis, Minn., on the brief), for appellant.

W. P. Westphal, St. Paul, Minn. (Edwin C. Matthias, Anthony Kane and J. H. Mulally, St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges.

GARDNER, Chief Judge.

As initiated this was an action brought by James Lawrence against the Great Northern Railway Company to recover damages for personal injuries. The action was brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It was alleged that Lawrence, at the time of receiving his injuries, was in the employ of the Great Northern Railway Company as a railway switch foreman; that as such it was his duty to work in and around the tracks, yards and switches of the Railway Company at Minneapolis, Minnesota; that on the 1st day of March, 1950, and for many years prior thereto the Railway Company had maintained in the downtown business section of Minneapolis, Minnesota, railway yards, consisting of the usual main, side, lead, switch and such other tracks as are ordinarily used by railway companies in their business as common carriers of freight and passengers; that during the time here involved there was a bridge commonly known as the Seventh Street Bridge which crossed over and above the railway yards and which carries both vehicular and pedestrian traffic on one of the principal thoroughfares of the city of Minneapolis; that at and prior to March 1, 1950, said bridge was being reconstructed under contract between the Railway Company and various contractors; that said contracts prohibited the contractors from placing, permitting or allowing any timbers or other objects or materials on said bridge or its appurtenances which might fall therefrom onto said yards and tracks or which would endanger the safety of railway employees whose duties required them in the scope and course of their employment in said yards to work underneath and below said bridge; that under the provisions of the Federal Employers' Liability Act the said contractors, their agents and employees, were in effect the agents and employees of the Railway Company and that by reason thereof the negligent acts of each and all of said persons and employees were chargeable and imputable to the Railway Company; that on the 1st day of March, 1950, while Lawrence, acting within the scope of his employment, was engaged in certain switching operations at a point near the so-called No. 6 switchstand, which was located directly under the Seventh Street Bridge, a large timber was caused to fall from such Seventh Street Bridge, striking Lawrence on the head and body and inflicting serious injuries. It was charged that the Railway Company was negligent in having failed to exercise ordinary care to furnish Lawrence a safe place in which to work. The complaint contained other charges of negligence which we think are not here important.

The Railway Company answered, admitting that Lawrence had been injured at the time and place alleged by coming in contact with a timber that had fallen from the bridge but denied negligence and pleaded contributory negligence on behalf of Lawrence.

The Railway Company, on leave of court, under Rule 14 of the Rules of Civil Procedure, 28 U.S.C.A., served a third-party complaint upon Waylander-Peterson Company, alleging that said company had negligently left a timber near the edge of the bridge in such position that it fell off, struck and injured Lawrence. It asked for indemnity from Waylander-Peterson Company for all sums that Lawrence might recover against the Railway Company. In answer to the third-party complaint the Waylander-Peterson Company denied that Lawrence was injured by reason of any negligence on its part and set up as an affirmative defense that Lawrence's injuries were caused by his own contributory negligence. It also alleged that the court did not have jurisdiction of the third-party proceedings because all parties were residents of Minnesota and hence there was no diversity of citizenship.

The Waylander-Peterson Company moved to dismiss the third-party proceedings on two grounds: first, because there was no diversity of citizenship, and second, because the third-party proceedings involved issues and rules of law which were so confusingly different from those involved in Lawrence's action against the Railway Company that its rights were in danger of being prejudiced. This motion was denied, D.C., 98 F. Supp. 746. The Waylander-Peterson Company then moved under Rule 42 of the Rules of Civil Procedure for a separate trial of the issues in the third-party proceedings. This motion was also denied.

The action was tried before the court and a jury and Waylander-Peterson Company appeared by counsel and actively participated in the trial of the action. Both the Railway Company and the Waylander-Peterson Company, at the close of all the evidence, interposed separate motions for a directed verdict, which motions were denied and the cause was submitted to the jury upon instructions and certain interrogatories. The interrogatories submitted to the jury were as follows: (1) Did a piece of timber fall from the Seventh Street Bridge at or near the fifth pier thereof and strike or come in contact with plaintiff, causing the injuries from which he is suffering? (2) Has the defendant, Great Northern Railway Company, established by the greater weight of the evidence that the timber which fell from the bridge came in contact with the plaintiff as a proximate result of the negligence of the Waylander-Peterson Company? The jury answered both of these interrogatories in the affirmative and returned a verdict in favor of Lawrence and against the Railway Company for $27,500. Following the return of the verdict the Railway Company moved for findings and conclusions in its favor to the effect that its negligence toward Lawrence was merely secondary or passive, whereas the negligence of Waylander-Peterson Company toward Lawrence was primary and active. Over objection of the Waylander-Peterson Company, the court entered the proposed findings in favor of the Railway Company and concluded that the Railway Company was entitled to judgment against the Waylander-Peterson Company for $27,500, the amount of the judgment in favor of Lawrence, together with costs and judgment was entered accordingly from which the Waylander-Peterson Company prosecutes this appeal.

In seeking reversal appellant urges: (1) that the Railway Company could not recover from it without first establishing that it was liable in negligence to Lawrence; (2) that it was entitled to judgment as a matter of law because there was no showing of any act of negligence on its part; (3) the court erred in not submitting to the jury the issue of whether Lawrence was guilty of contributory negligence; (4) the court erred in instructing the jury as to the applicability of the doctrine of res ipsa loquitur; (5) the court erred in denying appellant's motion to dismiss the third-party proceedings because the trial would involve confusing similar but different issues as compared with the principal action; (6) the court erred in denying appellant's motion for a separate trial of the third-party issues; (7) the court erred in refusing to dismiss the third-party proceedings on jurisdictional grounds because there was no diversity of citizenship; (8) the court erred in holding the Railway Company entitled to more than contribution to the extent of one-half of the verdict.

Viewing the evidence as we must in a light most favorable to the prevailing party, we think the jury, if entitled to apply the doctrine of res ipsa loquitur, was warranted in finding as it did in its answers to the interrogatories submitted to it, that a piece of timber fell from the Seventh Street Bridge and struck Lawrence, causing the injuries from which he is suffering. We think too that so viewed the evidence warranted the jury in finding as it did that the Railway Company established by the greater weight of the evidence that the timber which fell from the bridge and struck Lawrence was the proximate result of negligence of Waylander-Peterson Company. It is, however, urged that the facts and circumstances did not warrant the Court in permitting the jury to apply the res ipsa loquitur doctrine.

Timbers, such as the one which struck plaintiff, were seen on the bridge by plaintiff and four other railway employees who testified at the trial. One of these witnesses testified that shortly prior to the accident he saw similar timbers on the top of the bridge immediately over the place where Lawrence was injured. Another witness testified that on the very day of the accident he noticed timbers on the top of the bridge like the one which struck Lawrence. The Railway Company's civil engineer, Kelly, whose duty it was to watch the building of the bridge for any interference it might have with the Company's trains, testified that many times prior to the time in question he saw timbers similar to the one which struck Lawrence being used in connection with the construction of the bridge; that these timbers were used in connection with the building of the forms for the concrete piers and that the steel men used them for spacing between the girders. The steel men were the employees of appellant. The jury might reasonably have found as it did that there were hard wood bridge timbers such as struck Lawrence being used during the rebuilding of this bridge. There was also testimony that Lawrence passed over the place where he was later injured some fifteen minutes before the accident. Another employee testified that he went along this track seven or eight times on the day of the accident prior...