White v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 12 November 1951
• Docket Number: No. 42395,No. 1,42395,1
• Citation: 244 S.W.2d 26
• Court: Missouri Supreme Court
• Parties: WHITE v. ATCHISON, TOPEKA & SANTA FE RY. CO

Page 26

244 S.W.2d 26

WHITE v. ATCHISON, TOPEKA & SANTA FE RY. CO.

No. 42395.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 10, 1951.

Walter R. Mayne, F. W. Schwarz, St. Louis (John H. Lathrop, Sam D. Parker, Kansas City, of counsel), for appellant.

Cox, Cox & Cox, St. Louis, for respondent.

HYDE, Judge.

Action for damages for personal injuries under Federal Safety Appliance Act, 45 U.S.C.A. Sec. 2, and Federal Employers' Liability Act, 45 U.S.C.A. Secs. 51-60. Verdict and judgment for plaintiff for $9,000.00, from which defendant has appealed.

Plaintiff, a brakeman in defendant's employ, was injured in coupling a tank car to an engine while he was riding on the footboard of the engine. The case was submitted on violation of the Safety Appliance Act and on negligence of the engineer in failing to stop on signal from plaintiff. Defendant contends there was no substantial evidence to support either charge and that it was entitled to a directed verdict.

Plaintiff's evidence, which included the testimony of every member of the train crew, showed the following facts. Their train, going from Emporia to Newton, Kansas, was switching cars at Strong City. It was necessary to head the engine into a spur track to couple on to a tank car and move it to another track. Plaintiff threw the switch and got on the footboard on the right side of the pilot. Plaintiff estimated the distance from the switch to the tank car at 60 feet and the engineer estimated it at 130 feet. Plaintiff said the engine moved from two or four miles per hour but that it was only going two miles per hour as it came near the tank car. The fireman said two to three miles per hour and the engineer said between two and four.

Couplers are attached to drawbars, which must have some play to move from side to side for cars to go around curves and to make couplings on curves. Couplers must be aligned in order to couple automatically on impact. They will not couple if one is out about three inches from the center and if out eight inches it could by-pass the other coupler. This could cause damage to the pipe of the train line and might also injure a man standing on the engine footboard. The drawbar on the front of the engine was on a swivel but was prevented from moving far to either side by bumper posts. (Defendant's evidence was that it could only move 5 1/2 inches.) The usual procedure (required by safety rules) for aligning couplers was to stop the engine and push or pull the couplers into alignment with hand or foot. Plaintiff said he glanced at the alignment when about 30 feet from the tank car but could not then determine whether the couplers were in alignment. (The spur track curved to the left.) He could see that the engine drawbar was moved some to the right but not quite its full distance. When the engine moved closer ('approximately ten feet maybe a little bit more') he saw the couplers were not aligned and he thought the one on the engine was about eight inches to the right. He knew it would require an adjustment so he gave the engineer a stop sign when the engine was about ten feet from the tank car. He gave two stop signs but the engine did not stop until after the coupling was made. (He demonstrated to the jury the stop signs he gave.) Plaintiff said: 'It takes a little time, it takes a split second or so, to give a stop signal and we were still proceeding, then I was confronted with that emergency that the drawbar was going to have to be lined up before those cars came together, if they came together, so my first motive was to get the drawbar over. I threw my foot up to the drawbar and shoved it into alignment.' As plaintiff shoved the drawbar into alignment with his right foot the coupling was made and his big toe was caught in the couplers. He had to lift the pin with the hand lever and signal the engineer to move the engine back to release his foot. Plaintiff's intention was to get off, after he gave the stop sign, and line up the drawbars after the engine had stopped. However, when the stop was not made he felt he was confronted with an emergency to look after the company's property and wanted to get the drawbar into alignment before he got off. It was plaintiff's duty to line up the couplers.

It is conceded that cars will not couple unless the drawbars are properly aligned and that there is no device to permit one to stand at the side of cars and adjust the alignment as is done in uncoupling. Since the drawbars move to the side in going around curves, they may remain off center and there is no spring device to cause them to move back. Moreover, they must be in a different position to be aligned for a coupling on a sharp curve than for a coupling on a straight track. The coupling did make automatically between the engine and the tank car on this occasion, after plaintiff pushed the drawbar into alignment, as it did a short time before when the tank car was moved to this spur track at the beginning of the switching at Strong City. Members of the train crew examined the coupler after plaintiff's injury and found nothing wrong and their evidence was that no report is made on a coupler which fails to couple when it is not aligned. Defendant's evidence showed that there were no regulations of the Interstate Commerce Commission as to how much a drawbar may move.

Defendant contends that plaintiff's evidence, and the facts hypothesized in plaintiff's instruction on this issue, are not sufficient to show a violation of the Safety Appliance Act. (This instruction required findings that 'the coupler on the front of said engine was more than four inches out of line' and that 'by reason thereof, said coupler would not have coupled automatically upon impact with said tank car.') Defendant relies upon Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 511, 94 L.Ed 683. See also D.C., 79 F.Supp. 365; 8 Cir., 174 F.2d 486. In that case, the plaintiff relied upon a failure of cars to couple automatically upon impact and the defense was that the cars were equipped with proper automatic couplers but that the couplers were closed when the attempt to couple was made. The United States Supreme Court approved this defense saying, although "a failure of equipment to perform as required by the Safety Appliance Act is in itself an actionable wrong * * *.'

'Of course this assumes that the coupler was placed in a position to operate on impact. Thus, if 'the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened', the railroad had a good defense.' Defendant also cites the statement of the United States Supreme Court in Carter v. Atlanta St. A. B. R. Co., 338 U.S. 430, 70 S.Ct. 226, 229, 94 L.Ed. 236, concerning the Safety Appliance Act, as follows: 'This Court has repeatedly attempted to make clear that this is an absolute duty not based upon negligence, and that the absence of a 'defect' cannot aid the railroad if the coupler was properly set and failed to couple on the occasion in question.' (Our italics.) Defendant argues the same principle is involved in this case saying: 'it was just as necessary for the drawbars to be lined up to effect a coupling as it was that one of the couplers be opened, both of these prerequisites being in accordance with the basic mechanical structure, design and function of the couplers. Just as there is nothing in the Act requiring one of the couplers always being open, so also there is nothing in the Act requiring the drawbars always being in line.'

The United States Supreme Court, however, in Atlantic City R. Co. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 70, 61 L.Ed. 150, put drawbars in a different category. In that case, based on violation of the Safety Appliance Act, the facts were thus stated: 'The engine had backed for the purpose of coupling with the car and had failed to couple automatically by impact. Thereupon the plaintiff, noticing that the drawhead was not in line with the one on the engine, put in his arm for the purpose of straightening it and thus making the coupling possible, and was caught.' The court, in an opinion by Justice Holmes, ruled: 'We are of opinion that there was enough evidence to go to the jury upon that point. No doubt there are arguments that the jury should have decided the other way. Some lateral play must be allowed to drawheads, and, further, the car was on a curve, which, of course, would tend to throw the coupler out of line. But the jury were...