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Dykes v. Norfolk & Western Ry. Co.

OPINION FILED MARCH 23, 1984.

RALPH DYKES, PLAINTIFF-APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. Horace J. Calvo, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff, Ralph Dykes, brought this action to recover damages from the defendant, Norfolk and Western Railway Company, for injury resulting to him from an alleged violation of the Federal Safety Appliance Act (Act) (45 U.S.C. § 1 et seq. (1970)). The plaintiff, who was injured when he attempted to set a hand brake on a locomotive engine upon which he was working, alleged that the hand brake was defective and that this defect constituted a violation of the Act. Following a jury trial, the trial court entered judgment on the jury's verdict for the plaintiff in the amount of $18,000. On appeal from this judgment, the defendant contends that the alleged defect did not, as a matter of law, constitute a violation of the Act because the Act does not require hand brakes on locomotives. We agree and accordingly reverse the judgment entered by the trial court.

The plaintiff was employed at the time of his injury as a fireman in the defendant's Humboldt Yard in St. Louis, Missouri. As such he worked aboard a switch or yard engine, used locally to move cars from one track to another in making up trains.

On the date in question the plaintiff and his crew were assigned to engine No. 3370, a diesel-electric switch engine, to perform switching operations in the yard. In addition to the hand brake here at issue, engine No. 3370 was equipped with both an independent brake and an automatic brake. The independent brake was used to set the brakes on the engine alone, while the automatic brake was used to stop the train by setting air on the cars in the train. In addition, the hand brake could be set to hold the engine in case the engine died and the air leaked from the independent brake.

The plaintiff's injury occurred after the plaintiff and his crew had completed their first switching assignment of the day and had proceeded to the yard tower to take a break. Upon reaching the tower, the engineer in charge isolated the engine, which involved setting both the independent brake and the automatic brake. The plaintiff, as fireman, was to set the hand brake on the engine. He took the wheel of the hand brake and pulled it toward him to turn the wheel. When the plaintiff pulled hard on the wheel to tighten it, the wheel released, causing the plaintiff to fall back and pull his shoulder.

The plaintiff brought suit against the defendant, alleging in a one-count complaint a violation of the Act that proximately caused his injury. At trial the defendant moved for a directed verdict on the grounds that the allegedly defective hand brake could not have constituted a violation of the Act because the Act does not require hand brakes on locomotives. The motion was denied, and the jury returned a verdict for the plaintiff, assessing damages in the amount of $18,000. The defendant has appealed from the judgment entered on the verdict.

On appeal the defendant contends that the hand brake requirement of the Act, properly construed, does not extend to locomotives such as that here at issue. In its argument the defendant relies upon the history and purpose of the Act as well as upon case law interpreting similar provisions of the Act. In addition the defendant cites a long-standing administrative rule that expressly provides that hand brakes are not required on locomotives.

The hand brake requirement of the Act is set forth in section 11 (45 U.S.C. § 11 (1970)), which provides in pertinent part:

"It shall be unlawful for any common carrier subject to the provisions of sections 11 to 16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in said sections, to wit: All cars must be equipped with secure sill steps and efficient hand brakes[:] * * * Provided, That in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purposes."

Under this section efficient hand brakes are required on "all cars." Thus, in the instant case the defendant's liability for a violation of the Act depends upon whether a switch engine is a "car" for purposes of the hand brake requirement of the Act.

• 1 While the plaintiff contends that the word "car" should be construed broadly to include locomotives within the requirement of this section, it is well settled that a locomotive is not considered to be a car for all purposes under the Act. (Wabash R. Co. v. United States (7th Cir. 1909), 172 F. 864; LeHigh Valley R. Co. v. Beltz (2d Cir. 1925), 10 F.2d 74, cert. denied (1926), 270 U.S. 641, 70 L.Ed. 775, 46 S.Ct. 205; United States v. Chicago, St. P., M. & O. Ry. Co. (7th Cir. 1930), 41 F.2d 927; see Davis v. Manry (1925), 266 U.S. 401, 69 L.Ed. 350, 45 S.Ct. 163; Annot., 91 A.L.R.2d 523 (1963).) Rather, the determination of whether a locomotive comes within the scope of a specific section of the Act regarding cars has been held to depend upon both the context and purpose of the provision in question. Thus, as a general rule, a locomotive will be held to be a car within meaning of a particular section when the same reason exists for requiring the installation and maintenance of the prescribed safety device on the locomotive as exists for requiring it on a car. Annot., 91 A.L.R.2d 523 (1963); United States v. Chicago, St. P., M. & O. Ry. Co. (8th Cir. 1930), 43 F.2d 300.

In Johnson v. Southern Pacific Co. (1904), 196 U.S. 1, 49 L.Ed. 363, 25 S.Ct. 158, decided shortly after the enactment of the Safety Appliance Act in 1893, the court ruled that for purposes of the automatic coupler provision of the Act (see 45 U.S.C. § 2 (1970)), the word "car" was used in its generic sense to mean all kinds of cars running on the rails, including locomotives. The court noted that

"it was as necessary for the safety of employes [sic] in coupling and uncoupling, that locomotives should be equipped with automatic couplers, as it was that freight and passenger and dining cars should be, perhaps more so, * * * `since engines have occasion to make couplings more frequently.'" (Johnson v. Southern Pacific Co. (1904), 196 U.S. 1, 15, 49 L.Ed. 363, 368, 25 S.Ct. 158, 161.)

Since, in view of the "context, subject matter and object" (196 U.S. 1, 16, 49 L.Ed. 363, 369, 25 S.Ct. 158, 161) of the automatic coupler provision, there was no reason to distinguish between locomotives and other cars, ...


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