Frank J. Hunter v. Missouri-Kansas-Texas Railroad Company, a Corporation, and St. Louis-San Francisco Railway Company, a Corporation ( 1970 )

433 F.2d 352

Frank J. HUNTER, Appellant,
v.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation, and St. Louis-San Francisco Railway Company, a corporation, Appellees.

No. 10154.

United States Court of Appeals, Tenth Circuit.

October 27, 1970.

Clem H. Stephenson, Seminole, Okl. (Roehm A. West, Tulsa, Okl., was with him on the brief), for appellant.

William J. Ross, of Rainey, Flynn, Welch, Wallace, Ross & Cooper, Oklahoma City, Okl., for Missouri-Kansas-Texas RR. Co.

Ben Franklin, of Franklin, Harmon & Satterfield, Inc., Oklahoma City, Okl., for St. Louis-San Francisco Ry. Co.

Before LEWIS, Chief Judge, JOHN R. BROWN, Chief Judge,* and SETH, Circuit Judge.

PER CURIAM.

1

This appeal was taken from a judgment entered in the United States District Court for the Northern District of Oklahoma adverse to appellant on a claim for damages for personal injuries suffered and caused by the alleged negligence of the appellee railroads. Recovery was denied by the court, sitting without a jury, on a factual finding that appellant was guilty of contributory negligence and the legal conclusion that appellant, a non-employee of the railroads, was not within the compulsion of the Federal Safety Appliance Act of 1910, 45 U.S.C. § 11. The sufficiency of the evidence to support the court's factual determination and the correctness of the court's ruling on the application of the Safety Appliance Act to appellant are both questioned on appeal. The trial court's memorandum opinion, D.C., 276 F.Supp. 936, fully sets forth the evidentiary background of the case and the relationship between the parties.

2

Since the trial of this case the Supreme Court has authoritatively upheld the trial court's ruling that the Safety Appliance Act does not immunize a non-employee from the defense of contributory negligence where, as here, a railroad has violated a safety provision of the Act. Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176. And from our review of the record we cannot say that the trial court was clearly erroneous in finding that appellant's own conduct negligently contributed to causing his injury. The judgment is accordingly

3

Affirmed.

Notes:

*

Of the Fifth Circuit, sitting by designation