Porter v. Bangor & Aroostook

USCA1 Opinion












UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1808

MARK J. PORTER,

Plaintiff, Appellant,

v.

BANGOR & AROOSTOOK RAILROAD COMPANY,

Defendant, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge] ___________________

____________________

Before

Selya, Circuit Judge, _____________

Aldrich and Coffin, Senior Circuit Judges. _____________________

____________________


James F. Freeley, III with whom James F. Freeley, Jr. and Freeley _____________________ ______________________ _______
& Freeley were on brief for appellant. _________
Jeffrey T. Edwards with whom Elizabeth J. Wyman and Preti, ___________________ ____________________ ______
Flaherty, Beliveau & Pachios were on brief for appellee. ____________________________

____________________

February 9, 1996
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ALDRICH, Senior Circuit Judge. Mark J. Porter, an ____________________

experienced brakeman employed by defendant Bangor & Aroostook

Railroad Co., injured his back on October 1, 1992, while

adjusting a rusty car coupler device that had previously

failed to couple automatically with another car. He seeks

recovery under the Federal Safety Appliance Act (FSAA), 45

U.S.C. 2,1 a statute that has been ruled to impose

liability without fault, San Antonio & Aransas Pass Railway ___________________________________

Company v. Wagner, 241 U.S. 476 (1916), when a violation _______ ______

contributed in any degree to an employee's injuries. Carter ______

v. Atlantic & St. Andrews Bay Ry. Co., 338 U.S. 430, 434-35 ___________________________________

(1949). Alternatively, he asserts injury due to negligently

defective equipment, a typical Federal Employers Liability

Act (FELA), 45 U.S.C. 51, claim. In response to special

questions the jury found that defendant had violated the FSAA

but that the failure was not a cause of plaintiff's injury.

With respect to the FELA it found that defendant had not been

negligent. After denial of plaintiff's motion for new trial

on the two issues decided unfavorably, the court entered

judgment for defendant. Plaintiff appeals. We affirm.



____________________

1. "It shall be unlawful for any common carrier engaged in
interstate commerce by railroad to haul or permit to be
hauled or used on its line any car . . . 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." 45 U.S.C. 2 (1893) (repealed 1994) (current
version at 49 U.S.C. 20302).

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Plaintiff's appeal is devoted principally to the

FSAA action where he faces the substantial obstacle of a jury

finding of no causal connection between the violation and the

injury. Recognizing this burden, he takes the bull by the

horns and argues that, the violation and injury having been

established, the jury not merely should have found, but was

required to find a causal connection between them as matter

of law.

Plaintiff's contention takes two forms. First, he

says the jury's finding that defendant violated the FSAA

means that the coupling equipment was defective. Thus

plaintiff strained his back working on defective coupler

equipment; hence he was within the statute. We do not agree.

There is nothing especially dangerous in coupling devices

themselves, the statutory reach is the coupling maneuver. As

the Court said in the early case of Johnson v. Southern _______ ________

Pacific Co., 196 U.S. 1, 19 (1904), "The risk in coupling and ___________

uncoupling was the evil sought to be remedied . . . ."

Although plaintiff speaks about having to go between the ends

of the cars, it was not for coupling, but in preparation for

coupling. One must go behind, viz., between the cars, to

align the drawbars before commencing the coupling

operation2. If, as here, the cars are safely separated and

____________________

2. Plaintiff himself testified that the drawbars can swing,
and must sometimes be lined up in order to meet, a procedure
he performed routinely every day. See Goedel v. Norfolk & ___ ______ _________

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not in motion, readying is not coupling, and does not involve

the special coupling risks. What could be the reason, or

purpose, for requiring special protection for this isolated

activity? It is true that other circuits appear to have read

the FSAA more broadly, see Clark v. Kentucky & Indiana ___ _____ ____________________

Terminal Railroad, 728 F.2d 307 (6th Cir. 1984) (collecting _________________

cases),3 but they give no answer to our question. We can

think of none. Plaintiff had no FSAA case.

Alternatively, plaintiff would find a special

circumstance in the fact that his act of preparation was due

to, and hence the product of, a proven coupling violation.

According to his brief,

The undisputed material facts
demonstrate that plaintiff sustained a
back injury as a direct and natural
consequence of the defendant's violation
of section 2 of the FSAA.

. . . . .

The only reason that the plaintiff went
between the tank car and the hopper car
to realign the drawbar on the two cars
was because there had been a failed
coupling.

. . . . .

There is causation as a matter of
law. . . . Clearly, but for the failed

____________________

Western Railway Co., 13 F.3d 807, 809 (4th Cir. 1994). ___________________

3. In Kavorkian v. CSX Transportation, Inc., 33 F.3d 570 _________ _________________________
(6th Cir. 1994), the court assumed the correctness of
precisely our plaintiff's case for the purpose of granting a
new trial.

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coupling, plaintiff never would have gone
between the two cars . . . .

"But for" the previously failed coupling plaintiff would not

have been hurt. Post hoc, ergo propter hoc (Following this, __________________________

hence because of this), is poor logic.4 Plaintiff would

have our holding that a preparatory procedure falls under the

FELA change automatically to the FSAA (no need to prove

negligence) if the procedure was undertaken because of a

previous failure to couple in violation of that act. This

would be but a lottery, and purposeless. It is unacceptable.

This is not to say, of course, that plaintiff was

unprotected during the drawbar adjustment; he had his

ordinary FELA rights. The difficulty here is that the jury

found no negligence. Plaintiff's only complaint on appeal on

his negligence count is the court's failure to give a request

that assumption of risk was not a defense. Defendant had not

claimed assumption of risk, but only the partial defense of

contributory negligence. The instructions here were correct.

It is true that the two principles can be confused, but we

readily accept the court's conclusion that it would only add

confusion to "set up . . . [a] straw tiger and then knock it

down."

Affirmed. _________




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4. See, e.g., Webster's Dictionary, Unabr. 2d ed. 1953.

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