USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
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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. ____________________________
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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.
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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
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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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