(273 F.)

MCCALMONT v. PENNSYLVANIA CO.

(District Court, N. D. Ohio, E. D. April 18, 1921.)

No. 10502.

1. Master and servant 129 (6)-Causal connection between injury and violation of Safety Appliance Act essential.

While the Safety Appliance Acts (Comp. St. § 8606 et seq.) are intended for the protection of all employés, and not solely to prevent the necessity for men to go between the ends of cars to make uncouplings, to render a railroad company liable for injury to an employé thereunder, there must be a causal connection in a legal sense between the violation of the act and the injury,

2. Master and servant 111 (11⁄2), 247(5)—Injury by cars without coupler required by federal act held not actionable.

A car made defective by loss of a coupler was second of a number of cars standing on a storage track used solely for crippled cars, collected thereon for removal to the repair shop. It was necessary to improvise couplings before the cars could be moved, and plaintiff's intestate was an inspector in charge of such work. With an assistant he went between the first and second cars to shorten a chain coupling made by others, without first putting out a blue flag, as expressly required by the rules of the company, and while there the cars were driven together by another car kicked on the track, and by reason of the absence of the coupler he was killed. Held, that the railroad company was not liable under Safety Appliance Act, § 4 (Comp. St. § 8621), because (1) it was not "using, hauling, or permitting to be used or hauled on its line" the defective car at the time of the injury; and (2) the defective condition of the car was not the proximate cause of the injury, which was the negligence of deceased in failing to put out the warning flag.

At Law. Action by Dolly McCalmont, administratrix, against the Pennsylvania Company. Judgment for defendant.

D. F. Anderson (of Anderson, Lamb & Osborne), of Youngstown, Ohio, for plaintiff.

Thos. M. Kirby (of Squire, Sanders & Dempsey), of Cleveland, Ohio, for defendant.

WESTENHAVER, District Judge. [1] At the conclusion of all the testimony, defendant moves the court to direct a verdict in its favor. This motion is based on the ground that defendant's car, alleged to be defective within the prohibition of the Safety Appliance Act, was not at the time in use within the meaning of that act, and also that the defective condition of the car was not in a legal sense the proximate cause of the death of plaintiff's decedent. The questions of law raised by this motion are much disputed by lawyers and cannot be said to be fully settled by decision. I have been called upon to deal with these questions in a number of cases, have read and reread the United States Supreme Court cases cited by counsel as pertinent or controlling, and it may therefore be helpful to counsel, not only in this but in other cases, if I review fully the law as I understand it.

The federal Safety Appliance Act of 1893, in section 2 (Comp. St. § 8606), provides:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"On and after the 1st day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

It will be observed that the prohibition of this section is against hauling or permitting to be hauled, or used, on its line, any car not thus equipped.

The amendment of 1910, in section 4 (Comp. St. § 8621), provides: "Any common carrier subject to this act, using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this act, not equipped as provided in this act, shall be liable to a penalty of $100 for each and every such violation."

The criminal offense thus created is "using, hauling, or permitting to be used or hauled on its line." The word "permitting" was evidently inserted to meet the case of one interstate carrier receiving cars from another line, not thus equipped, and hauling them on its own line. Then follows a proviso in this section which says:

"Where any car shall have been properly equipped as provided in this act and the other acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by [this] section, if such movement is necessary to make repairs and such repairs cannot be made except at such repair point."

The penalties referred to therein are obviously the criminal penalties imposed by that section. It may be removed, without liability for such penalties, to the nearest available repair point, but only in the event such repairs cannot be made where the car becomes defective or insecure. Then follows the provision relied on by plaintiff, with reference to the civil liability. It is in these words:

"And such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employé caused to such employé by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to."

There is also a further proviso, in these words:

"And nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain live stock or 'perishable' freight."

These prohibitions of the Safety Appliance Act, as I understand them, are against the hauling, using, or permitting to be used or hauled, any car not thus equipped. The permission to haul from the place where the want of repair is discovered is a permission to haul it only to the nearest available repair place, and only in case it is necessary to do such hauling in order to make repairs, and when they cannot be made except at that repair place. Even this permission to haul to the near

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est available repair place does not permit the hauling of defective cars by chains instead of drawbars in association with other cars commercially used, unless such defective car contains live stock or perishable freight. Obviously this means that crippled cars must be hauled in trains made up exclusively of crippled cars. The association of the word "used" with the words "hauled or permitted to be hauled on its line" clearly indicates that the use must be associated with or related to the transportation or hauling of a crippled car, either in transportation from place to place, or of the car from the place where found to be defective or insecure to the place of repair. It does not mean such use of the car elsewhere or in other relations than such hauling or movement.

Obviously cars have to be equipped somewhere with safety appliances. Obviously, if they are once equipped and get out of repair, they must be repaired somewhere. It could not be contemplated that cars could be either constructed or equipped in such a manner as never to become defective or insecure or out of repair. The act of repairing or putting the crippled car in condition for transportation to a repair point is a different matter, as I understand it, from the using, hauling, or permitting to be used or hauled, upon its line, by the carrier, of a car not properly equipped as is required by the Safety Appliance Act, or becoming out of repair after being once equipped. It is only when the use is in connection with the movement or hauling of the car in the forbidden manner that the Safety Appliance Act can be said to apply. Injuries sustained under other conditions and in other situations are controlled by the negligence rules provided in the federal Employers' Liability Act of April 22, 1908 (Ū. S. Compiled Statutes, §§ 8657-8665).

Undoubtedly border line cases will arise. It will be difficult at times to say whether the car was thus in use or out of use. The work being done by an employé on that crippled car may be so intimately connected with the intended or contemplated movement or hauling of the car as to be a part of such movement; and other cases will arise in which the same will be so remote as not to be a part thereof. In that situation, the rules established by the decisions for determining when an employé was engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof, may by analogy furnish a standard whereby this question may be solved. See Pedersen v. Delaware, etc., R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Roush v. B. & O. R. R. Co. (D. C.) 243 Fed. 712.

But, assuming the Safety Appliance Act applies to the situation, the question arising is whether the defect complained of is a proximate cause of the employé's injuries. This question is very perplexing. In determining it we have the assistance of several decisions of the United States Supreme Court, and I believe it will aid to an understanding of the law if I should review each of those cases. I have read them many times in the past, and during the noon recess have again reread them all.

The fast in time, if not in importance, is St. Louis & San Francisco Railroad Co. v. Conarty, 238 U. S. 243, 35 Sup. Ct. 785, 59 L. Ed. 1290. In that case the injured employé sustained his injuries as the result of a collision between a switch engine and a loaded freight car having no coupler or drawbar at one end, which drawbar had been pulled out by the cars in transit. This crippled car was about to be placed on an isolated track for repair, and during the movement was left near a switch leading to that track, while other cars were being moved out of its way. This task would have taken about five minutes. While the crippled car was standing there, a switch engine, having nothing to do with the movement of the crippled car, or with the movement of the other cars which had to be taken out of its way, came along and collided with it; in other words, there was a collision between the switch engine, independently operated, and the crippled car standing upon the track. Conarty and two other fellow employés were riding on the forward end of the switch engine that bumped into the crippled car. His fellow employés, one on one side and one on the other, both stepped from the engine and escaped injury; but he was caught between the switch. engine and the crippled car and thus sustained his injuries. The holding was that the violation of the Safety Appliance Act and the movement of the car in this manner was not a proximate cause of the injury to the employé. In the opinion, delivered by Mr. Justice Van Devanter, it is said:

"Had these appliances [the coupler and drawbar of the defective car] been in place, they, in one view of the evidence, would have kept the engine and the body of the car sufficiently apart to have prevented the injury; but in their absence the engine came in immediate contact with the sill of the car with the result stated."

And further:

"It is not claimed, nor could it be under the evidence, that the collision was proximately attributable to a violation of those provisions, but only that, had they been complied with, it would not have resulted in injury to the deceased."

As I understand that statement of the law, it is that the deceased would not have been injured, had the drawbar or coupler been in place. on the crippled car, but that their absence was not what in law is called a proximate cause of the injury. Mr. Justice Van Devanter, after reviewing the provisions of the Safety Appliance Act and its objects and purposes, further says:

"Nothing in either provision gives any warrant for saying that they are intended to provide a place of safety between colliding cars. On the contrary, they affirmatively show that a principal purpose in their enactment was to obviate the necessity for men going between the ends of the cars.' We are of opinion that the deceased, who was not endeavoring to couple or uncouple the car, or to handle it in any way. but was riding on the colliding engine, was not in a situation where the absence of the prescribed coupler and drawbar operated as a breach of a duty imposed for his benefit."

It obviously follows that the proximate cause in that case must be found in the negligence of the persons operating the switch engine which ran into the crippled car, or in the negligence of the other employés,

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who left the crippled car in that situation without giving proper notice or warning to the crew operating the switch engine. In that view of the law, the crippled car was a condition, but not a cause, of the accident.

In Great Northern Railway Co. v. Wiles, 240 U. S. 444, 36 Sup. Ct. 406, 60 L. Ed. 732, the employé who was killed was the flagman or rear brakeman, whose duty it was, under the rules, whenever his train came to a stop upon the tracks, to go back with a flag and protect the rear of the train. The train on which he was employed had come to a halt upon the track as a result of the train separating or pulling apart because of a defective coupler or drawbar. Wiles, instead of going back to protect the rear of the train, remained with the conductor in the caboose, for some reason unknown and unexplained, and a train following close behind ran into the caboose and killed both Wiles and the conductor. No negligence was attributable to the engineer or employés of the following train. A recovery was denied on the ground that the flagman's negligence was the sole proximate cause of his death, from which the corollary follows that the violation of the Safety Appliance Act, which permitted the train to become uncoupled while in use, was a remote cause of the injury.

The first headnote sums up the reasoning of the opinion correctly in these words:

"Where there is nothing to extenuate the negligence of the employé, or to confuse his judgment, and his duty is as clear as its performance is easy. and he knows not only the imminent danger of the situation, but also how it can be averted by complying with the rules of the employer, there is no justification for a comparison of negligences on the part of the employer and employé, or the apportioning of their effect under the provision of the Employers' Liability Act. To excuse such neglect on the part of an employé of an interstate carrier would not only cast immeasurable liability on the carriers, but remove security from those carried."

As counsel well know, it was in part upon the authority of the Wiles Case that I held no liability existed in the Copeland Case, and my judgment in the Copeland Case has since been sustained by the Circuit Court of Appeals. See 269 Fed. 361.

In Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995, the question, mooted, but left undecided, in the Wiles Case, again arose and was decided, namely, whether or not an inference is to be drawn of a violation of the Safety Appliance Act from the mere fact that the automatic coupler on the train pulls apart while the train is being hauled. There was no proof offered of a failure to observe the act, except that one of the couplers had pulled open, permitting the train to separate. The doctrine of res ipsa loquitur was applied. That case was followed by me and applied in what is known as the Caldwell Case, and my judgment was again affirmed by the Circuit Court of Appeals. See 264 Fed. 947.

The next case of importance is Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931. It is this case. which has been making for confusion in the minds of the legal profession and has been taken as modifying, if not overruling, the doctrine of the Conarty Case. Upon the facts, the case is comparatively simple,