Opinion
No. 41236.
October 19, 1959.
1. Railroads — master and servant — air-brake provision of Federal Safety Appliance Act — not applicable to switching operations.
The air-brake provision of the Federal Safety Appliances Act deals with running of a train and does not deal with switching operations, and hence railroad was entitled to peremptory instruction in suit by brakeman for injuries sustained when cars were engaged in switching operation. Federal Safety Appliance Act of 1893; Title 45, U.S.C.A., Sec. 1.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Lee County; RAYMOND T. JARVIS, Judge.
D.W. Houston, Jr., Aberdeen; Bolton Doty, Tupelo, for appellant.
I. The Court erred in overruling the objection of the defendant to the testimony of the so-called expert, W.W. Coats, and in overruling the motion of the defendant at the end of his testimony to exclude all of his evidence.
II. Plaintiff's Instruction No. 1 was error. This instruction was as follows: "The Court instructs the jury for the plaintiff, Ray Vaughn, that the Safety Appliance Act is an act of Congress, which imposes liability on the railroad company for hauling in its trains any car, or cars, with defective, or inefficient, air-brakes, and that the railroad company is liable for any injury which the plaintiff may sustain as a result in whole or in part of its violation of the said Safety Appliance Act."
III. Plaintiff's Instruction No. 5 was error. This instruction was as follows: "The Court instructs the jury for the plaintiff, Ray Vaughn, that the defendant railroad company is liable to the plaintiff for injuries resulting in whole or in part from the defendant's violation of the Safety Appliance Act even through the defendant had no opportunity to inspect the defective or inefficient safety appliance prior to the occurrence of the accident, and if you believe by the preponderance of the evidence that the plaintiff sustained injuries as a result of the defendant's violation of the Safety Appliance Act, even though the defendant had no opportunity to inspect the defective or inefficient braking system on the car or cars involved, then it is your sworn duty as jurors to enter a verdict for the plaintiff in this case."
IV. Plaintiff's Instruction No. 6 was error. This instruction was as follows: "The Court instructs the jury for the plaintiff in this case that there arises absolute liability on the part of the railroad company for failure of safety appliances to function, and if you believe by a preponderance of the evidence that the air-braking system on a car or cars involved in this accident failed to function efficiently and plaintiff's injuries resulted in whole or in part therefrom, then it is your sworn duty as jurors to return a verdict for the plaintiff, even though there is a total lack of satisfactory evidence of any specific defects in the air-braking system on the aforesaid car or cars involved."
V. Plaintiff's Instruction No. 9 was error. This instruction was as follows: "The Court instructs the jury for the plaintiff that liability arises simply from a violation of the Safety Appliance Act, and if you believe by a preponderance of the evidence that the plaintiff was injured as a result in whole or in part by the railroad's violation of the Safety Appliance Act, then it is your sworn duty as jurors to bring in a verdict for the plaintiff in this case."
VI. Plaintiff's Instruction No. 10 was error. This instruction was as follows: "The Court instructs the jury for the plaintiff, Ray Vaughn, that if you find by the preponderance of the evidence that the plaintiff was injured by a result of the defendant's violation of the Safety Appliance Act, in the efficient operation of the brake or brakes on the car or cars, then in that event, you may not hold the plaintiff guilty of any contributory negligence." Dixie Stock Yards v. Ferguson, 192 Miss. 162, 4 So.2d 724; Godfrey v. Meridian Railway Light Co., 101 Miss. 565, 58 So. 534.
VII. The peremptory instruction should have been given. Davidson v. Amoessen Southwestern R. Co., 144 F. Supp. 599; St. Louis S.F.R. Co. v. Conarty, 49 L.Ed. 1292; United States v. Chicago B. Q. Oil Co., 59 L.Ed. 1019; United States v. Texas N.O.R. Co., 13 F.2d 429.
Adams, Long Adams, Tupelo; Ramsey Bodron, Vicksburg, for appellee.
I. The injuries for which suit was brought and judgment rendered were a direct and proximate result, in whole or in part, and flowed from a violation of the Federation Safety Appliance Act, 45 United States Code Annotated, Sections 1-16 inclusive. This act is a part of and is to be construed pari materia with the Federal Employers' Liability Act, 45 United States Code Annotated, Sections 51-56 inclusive. The purpose of the passage of the two acts was to afford protection of a large class of persons who were employed in the hazardous work of railroading, and the courts have held that the act should be liberally construed so as to effectuate the humanitarian purpose for which they were enacted.
II. Safety Appliance Act pari materia with Federal Employers' Liability Act. Jacobson v. New York, N.H. H.R. Co., 206 F.2d 153; San Antonio R. Co. v. Wagner, 241 U.S. 447, 60 L.Ed. 1110, 36 S.Ct. 626.
III. Purpose of the Safety Appliance Act. Smiley v. St. Louis-San Francisco R. Co., 359 Mo. 474, 222 S.W.2d 481.
IV. United States and Federal decisions controlling. Illinois Central R. Co. v. Coussens, 223 Miss. 102, 77 So.2d 818.
V. Liberal construction. Jamison v. Encarnacion, 218 U.S. 635, 50 S.Ct. 440; 45 U.S.C.A., Secs. 1-51 notes 2, 11 pp. 5, 172.
VI. Application of Safety Appliance Act. Anno. 16 A.L.R. 654.
VII. Safety Appliance Act — Air Brakes. Coray v. Southern Pacific R. Co., 335 U.S. 520, 69 S.Ct. 275; Missouri-Kansas-Texas R. Co. v. Evans, 250 S.W.2d 385, New York, New Haven H.R. Co. v. Leary, 204 F.2d 461.
VIII. The witness, Coats, fulfilled all of the qualifications of an expert witness and testified that in his opinion, as an expert on air brakes, that the accident was caused by a leakage from the reservoirs into the brake cylinder through the AB valves due to a leak in that part of the brake cylinder. This, of course, made out a clear case of the violation of the Federal Safety Appliance Act. Martin v. St. Louis-San Francisco R. Co., 46 S.W.2d 149; Mississippi Central R. Co. v. Aultman (Miss.), 160 So. 737; Richmond, F. P.R. Co. v. Brooks, 197 F.2d 404; 22 C.J., Sec. 647 p. 546.
IX. There was no error in plaintiff's instructions. Alabama Great Southern R. Co. v. United States, 243 F.2d 520; New York, New Haven H.R. Co. v. Leary, supra.
X. Appellant's contention that peremptory instructions should have been given is groundless both in law and in fact. Long v. Union R. Co., 175 F.2d 198; Missouri-Kansas-Texas R. Co. v. Evans, supra; United States v. Erie R. Co., 237 U.S. 401, 59 L.Ed. 1019; United States v. Ft. Worth Denver City R. Co., 21 F. Supp. 916.
The appellee brought suit against the appellant for the recovery of damages for a personal injury alleged to have been sustained by him while employed as a brakeman on its train which was on a run from Amory, Mississippi, to Magnolia, Alabama. He based his original declaration on the Federal Employee's Liability Act and also on the Federal Safety Appliance Act. But, after answer, he obtained leave to file an amended declaration and in the amended declaration he based his sole cause of action upon the Federal Safety Appliance Act which is found in 45 U.S.C.A. He claimed in the amended declaration that the railroad company had violated Section 1 of the act which provides that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power-driving wheel brake and appliances for operating the train brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand-brake for that purpose.
At the trial the appellee admitted and the proof showed without conflict that the train in question had reached a point just outside of the City of Columbus and that the train had been stopped and a number of cars disconnected therefrom, and that it was making a "flying switch", that is to say that the locomotive was pulling these cars at a speed of about five miles per hour, and that the automatic coupler had been disconnected and the engine had then greatly increased its speed and pulled away from these disconnected cars and when it had passed a switch, the switch had been thrown and the cars permitted to coast down into an interchange track connected to the Columbus and Greenville Railroad and it was after the engine had pulled onto a separate track that these loose cars had coasted on to the interchange track when the appellee sustained his injury. It is admitted by the appellee, and the proof shows without conflict, that the cars were being engaged in a switching operation and at the conclusion of the evidence the appellant requested a peremptory instruction which was refused by the trial court.
The appellant brings the case here and he enumerates several grounds of error, but we think it is necessary only for us to consider one of these grounds and that is that the air-brake provision found in the Federal Safety Appliance Act deals with running a train and does not deal with switching operations.
(Hn 1) We think that the appellant's position in this regard is well taken. In 45 U.S.C.A., Section 1, Note 53, on p. 22, there is an annotation dealing with the subject under consideration. In that note there is cited a decision of the United States Supreme Court in the case of United States v. Erie Railroad Company, 35 S.Ct. 621, 237 U.S. 402, 59 L.Ed. 1019, as well as numerous cases from various courts including circuit courts of appeal throughout the country, all of which support the following quotation from the annotation:
"The air-brake provision deals with running a train, while the other requirements relate to hauling or using a car. In one a train is the unit and in the other a car. As the context shows, a train in the sense intended consists of an engine and cars which have been assembled and coupled together for a run or trip along the road. When a train is thus made up and is proceeding on its journey it is within the operation of the air-brake provision. But it is otherwise with the various movements in railroad yards whereby cars are assembled and coupled into outgoing trains, and whereby incoming trains which have completed their run are broken up. These are not train movements, but mere switching operations, and so are not within the air-brake provision. The other provisions calling for automatic couplers and grab irons are of broader application and embrace switching operations as well as train movements, for both involve a hauling or using of cars."
So far as we can tell there is no decision to the contrary and the appellee has certainly cited nothing to the contrary. He has cited cases involving automatic couplers and grab irons and angle cocks, but he has cited no case involving air-brakes on loose cars engaged in switching operations such as we have here. Consequently we are of the opinion that the requested peremptory instruction should have been granted and that for refusing to grant the same the judgment of the lower court should be reversed and a judgment here entered in favor of the appellant.
Reversed and judgment here.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.