Porter v. Bangor & Aroostook

• Court: Court of Appeals for the First Circuit
• Decided: February 9, 1996
• Docket: 95-1808
• Status: Published

Opinion

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]
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                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                      Aldrich and Coffin, Senior Circuit Judges.
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James F. Freeley, III with whom James F.  Freeley, Jr. and Freeley
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        & Freeley were on brief for appellant.
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            Jeffrey  T. Edwards  with  whom  Elizabeth  J.  Wyman  and  Preti,
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        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
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            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
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            Company v.  Wagner, 241  U.S. 476  (1916),  when a  violation
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            contributed in any degree to an  employee's injuries.  Carter
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            v. Atlantic &  St. Andrews Bay Ry. Co., 338  U.S. 430, 434-35
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            (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
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            Pacific Co., 196 U.S. 1, 19 (1904), "The risk in coupling and
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            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
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            Terminal Railroad,  728 F.2d 307 (6th  Cir. 1984) (collecting
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            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



                                
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            Western Railway Co., 13 F.3d 807, 809 (4th Cir. 1994).
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            3.  In  Kavorkian v.  CSX Transportation,  Inc., 33  F.3d 570
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            (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,
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            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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