Citations
- 404 F.2d 291
Full opinion text
LAY, Circuit Judge.
The Chicago, Rock Island and Pacific Railroad Company appeals from an adverse judgment under the Federal Boiler Inspection Act, 45 U.S.C. §§ 22-34. The defendant seeks reversal challenging (1) the failure of plaintiff to prove a violation of the Boiler Inspection Act as a matter of law and (2) the trial court giving additional instructions to the jury in absence of counsel after the case had been submitted. We reverse and grant a new trial on damages only.
The evidence discloses that Dallas D. Speth was employed by the railroad as a fireman on a switch engine. On October 4, 1963, Speth observed two explosive torpedoes improperly placed on the edge of a rack inside the engine cab. The torpedoes were “stuck together,” and while he was attempting to separate them before returning them to their proper storage place, they exploded. As a result of the explosion, he lost a thumb and a portion of his fingers on the left hand. The torpedoes had the word “Danger” marked on them. Speth testified that although he knew they were explosive, he had no reason to believe they were defective.
The railroad seeks to avoid liability under the Federal Boiler Inspection Act on the ground that the facts in this case do not demonstrate that the injury was caused by a mechanical defect in railroad equipment. It is clear, however, that the Act does not make this a requirement for its application. As the United States Supreme Court stated in Lilly v. Grand Trunk W. R. R., 317 U.S. 481, 488, 63 S.Ct. 347, 352, 87 L.Ed. 411 (1943):
“The [Boiler Inspection] Act without limitation speaks of equipment ‘in proper condition and safe to operate * * * without unnecessary peril to life or limb.’ Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb.”
See also Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Holfester v. Long Island R. R., 360 F.2d 369 (2 Cir. 1966); Gowins v. Pennsylvania R. R., 299 F.2d 431, 433 (6 Cir. 1962). We find the record is factually sufficient to sustain the jury verdict and affirm the judgment as to liability against the railroad. However, because of errors relating to instructions on damages, we remand the case for a new trial on the issue of damages alone.
After the jury had been instructed by the court and had retired, the following colloquy between counsel and the court took place:
“By the Court: I am inclined to think in this particular case that if the Jury raises any questions, that I would simply send the complete Charge to them and let them study it, but I recognize you would probably like to get back.
“Mr. Dudgeon (attorney for the railroad) : I will stay if Your Honor thinks this is the thing to do.
“By the Court: You will be given an exception, if you are not here, to any additional Charge that I might give.”
The jury retired in the middle of the afternoon. At 8:55 p. m. the record shows the following communication took place:
“By the Court: Members of the Jury, you sent an inquiry to the Court inquiring about Question No. 8, and I gather your concern is whether or not that is related to something else. It is not. The question is plain and simple.
(Interrogatory No. 8) “ ‘WHAT AMOUNT DO YOU FIND FROM A PREPONDERANCE' OF THE EVIDENCE TO BE A FAIR AND REASONABLE, BUT NOT EXCESSIVE, COMPENSATION FOR THE INJURIES AND DAMAGES WHICH THE PLAINTIFF HAS SUSTAINED SOLELY AS A RESULT OF THE ACCIDENT INVOLVED IN THIS ACTION?’
“That would mean that if you had no other evidence, except the damage that this man has sustained, if any, this is the figure you will insert for that amount.
“Do I make myself plain? It is not related to any other percentages at all, negligence or contributory negligence or anything else.
“Do I make myself plain?”
At 9:10 p. m. the jury returned with a verdict of $16,000.00. An answer to a special interrogatory (submitted by reason of the alternative claim under the Federal Employers’ Liability Act) assessed the plaintiff’s contributory negligence in the amount of forty per cent. After viewing the verdict, the court su