Opinion
No. 42395.
November 12, 1951. Motion for Rehearing or to Transfer to Court en Banc Denied December 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 14, WILLIAM B. FLYNN, J.
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.
Action for damages for personal injuries under Federal Safety Appliance Act, 45 U.S.C.A § 2, and Federal Employers' Liability Act, 45 U.S.C.A. §§ 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, may be 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 nor 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 warranted in finding that the curve was so slight as not to affect the case, and in regarding the tract as, for this purpose, a straight line. If couplers failed to couple automatically upon a straight track, it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law." We followed this ruling, in a similar case, in Jordan v. East St. Louis Connecting Ry. Co., 308 Mo. 31, 271 S.W. 997. (See also 2 Roberts Federal Liability of Carriers 1206, Sec. 620 and cases cited under note 21.)
In two more recent cases, Hampton v. Des Moines C. I. R. Co., 65 F.2d 899, 900 and Chicago, St. P., M. and O. R. Co. v. Muldowney, 130 F.2d 971, the Eight Circuit Court of Appeals has followed the Atlantic City R. Co. case. In the Hampton case the situation was very similar to this case. Hampton was riding the footboard on the right side of an engine approaching a car. When close to the car, he noticed the drawbar of the engine was four or five inches out of line to the right. He knew the coupling would not make and pushed the drawbar with his foot. The coupling was made, but his foot was caught and he had to pull the pin and have the engine move to release his foot. The court ruled as follows: "If the drawbar in question here was four or five inches out of line, as testified to by the plaintiff, so that he was required to move it four or five inches from its original position in order to make the coupling, it was not such a coupler as the law required. Delk v. St. Louis San Francisco R. R. Co., 220 U.S. 580, 584, 585, 31 S.Ct. 617, 55 L.Ed. 590; San Antonio A. P. Ry. Co., v. Wagner, supra, 241 U.S. [476] 483, 484, 36 S.Ct. 626, 60 L.Ed. 1110; Atlantic City R. Co. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 61 L.Ed. 150. The fact that the coupling was made after the plaintiff aligned the drawbar does not disprove his statement that it would not have been made by impact had he not aligned it. We think that the testimony of the plaintiff and the testimony of his expert that a drawbar four or five inches out of line laterally will not couple upon impact constituted substantial evidence that the coupler was defective, and made that question one of fact for the jury." This ruling was followed in the Muldowney case. In the San Antonio A. P. R. Co. case [ 241 U.S. 476, 36 S.Ct. 629], the United States Supreme Court also said: "The jury could reasonably find that the misalignment of the drawbar was greater than required to permit the rounding of curves."
Thus it is clear that plaintiff made a jury case, on this issue, under the rulings of the United States Supreme Court in the Atlantic City R. Co. case and the San Antonio A. P. R. Co. case. There was no evidence in this case as to just how much of a curve there was at the exact spot where the tank car stood. This certainly does not appear from plaintiff's evidence and neither does it appear therefrom that lateral play of more than four inches, in the engine drawbar, was needed. In such a situation, the specific rulings of the United States Supreme Court have been that a jury would be warranted in finding a violation of the Safety Appliance Act. We are bound to follow these rulings and, therefore, must hold that the court properly submitted this issue.
As to the negligence of the engineer in failing to stop on plaintiff's signal, submitted as an alternate ground of recovery, defendant contends that plaintiff was not qualified to give an opinion on stopping distance and that there was no other evidence to show that the engineer could have stopped the engine before the couplers came in contact and caught plaintiff's foot. Defendant assigns error in admitting this testimony, citing Boring v. Metropolitan Street Ry. Co., 194 Mo. 541, 92 S.W. 655; Lynch v. Chicago Alton Ry. Co., 208 Mo. 1, 106 S.W. 68; Irwin v. St. L. San Francisco Ry. Co., 325 Mo. 1019, 30 S.W.2d 56; Ambruster v. Levitt Realty Investment Co., 341 Mo. 364, 107 S.W.2d 74; Gourley v. St. L. San Francisco Ry. Co., 35 Mo.App. 87; Igo v. Chicago Alton Ry. Co., 38 Mo.App. 377; Mammerberg v. Metropolitan Street Ry. Co., 62 Mo.App 563; Gash v. Mansfield, Mo.App., 28 S.W.2d 127; 20 Am.Jr. 656, Sec. 783. The applicable rule is: "Whether or not the qualification of a witness to state his opinion is sufficiently established is a matter resting largely in the discretion of the trial court, and its ruling thereon * * * ordinarily will not be disturbed on appeal unless there is a clear * * * abuse." 32 C.J.S., Evidence § 458, p. 99; see also 5 C.J.S. Appeal and Error, § 1604, p. 500; Adams v. Quincy, O. K. C. R. Co., 287 Mo. 535, 229 S.W. 790; Adkins v. Chicago, R. I. P. R. Co., 222 Mo.App. 578, 292 S.W. 1075; Hiatt v. Wabash R. Co., 334 Mo. 895, 69 S.W.2d 627; Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120. Considering all these authorities, we do not think there was prejudicial error in admitting this testimony.
Plaintiff had never operated an engine but he had worked several years as a brakeman and he said he had stopped the engineer before in the distance of ten feet. He said the last time he had done that was at Eleanor, about 45 minutes before he was injured, and that there the engine was going about two miles per hour. We do not think we can say there was a clear abuse of discretion in admitting this testimony of plaintiff although its weight may not have been sufficient by itself to be substantial evidence. See Ambruster v. Levitt Realty Investment Co., supra. However, we think it was sufficiently corroborated by the testimony of the engineer when that evidence is considered most favorably to plaintiff. The engineer said he could have stopped in ten or twelve feet. The estimate of distance between the engine and the tank car, as given by both the engineer and plaintiff, was not positive but only approximate. The engineer also said he saw one signal given by plaintiff but plaintiff said he gave two signals. Therefore, the jury could reasonably have found that the engineer negligently missed plaintiff's first signal, which would have given him some additional stopping distance over what he actually used. He further testified that he considered the stop signal as a normal stop signal for coupling, which is not a signal given to stop movement before making the coupling. He said: "The idea is to make the stop just about the time the coupling is made or just after the coupling is made in order to be sure the coupling will be made." He also said that on this particular occasion the engine moved probably six inches after the coupling was made. All this indicates that the engine could have been stopped short of the impact if the engineer had acted promptly to do so on plaintiff's first signal or at least the jury could have reasonably so found. We, therefore, hold that the court properly submitted this issue to the jury.
The judgment is affirmed.
All concur.