
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.                                 ____________________                     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                                 ____________________                      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).                                         -2-                      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 &                                                 ___ ______     _________                                         -3-            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.                                         -4-                      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.                      _________                                            ____________________            4.  See, e.g., Webster's Dictionary, Unabr. 2d ed. 1953.                                         -5-
