This wаs an action by appellee, James H. Cagle, against the appellant, the Kansas City Southern Railway Company, to recover damages for injuries suffered in attempting to effect a coupling of two box cars in a train being operated by appellant. It was instituted under the Coupler Provisions of the Safety Appliance Act of the United States. 1 Appellee was employed by appellant as a brakeman and was engaged in the performance of his duties at the time he suffered thе injuries complained of.
The complaint alleged that at the time of the accident he v/as engaged in certain switching operations; that in connection therewith a coupling was to be made between two cars; that while performing his services appellant violated the Act in moving and hauling a car when the drawbar was оut of alignment and in such a condition that it would not couple automatically with the other car upon impact; that as a result it was *14 necessary for him to manually align thе drawbar so the coupling could be made and, while doing this, he suffered the injuries for which recovery was sought.
A trial was had to a jury. At the conclusion of appellee’s evidence, appellant moved for an instructed verdict and again so moved at the conclusion of all the evidence. These motions were overruled and thе case was submitted to the jury. It returned a verdict for appellee. A motion for a new trial and a supplemental motion for a new trial were overruled and judgment wаs entered upon the verdict.
While six assignments of error are urged, they in effect raise only two substantial issues. These are: (1) There was no-evidence warranting the submission of thе case to the jury; and (2) the court erred in overruling appellant’s motion for a new trial and especially its supplemental motion for a new trial.
Appellee’s evidence tended to establish these facts. At the time of the accident he was riding on the lead end of a ear which was being backed in a southerly direction to couple with another car, referred to as the Rock Island car; that the drawbar on the car that appellee was riding on was in proper alignment and the knuсkle on the coupler was open; that if the drawbar on the Rock Island car had been in line it would have been possible to couple automatically, but that the drawbar on the Rock.Island car was so far out of line to the west that it was not possible to couple to it; that appellee had much experience in coupling cars and could tell on approaching a drawbar when it was out of line; that he signalled to the engineer to stop and went between the cars to pull the draw-bar of the Rock Island car into line; that in doing so he suffered the injuries complained of for which recovery was sought and obtained.
The one fact upon which аppellant was sought to be held liable was that it was operating a car on which the drawbar was so far out of line that it could not be coupled automatically by impact. Appellant states the question in its brief to be, “Was this one fact that the coupler was out of line a noncompliance with the Act?” We think the answer to this question must be in the affirmative.
A great number of cases have considered the scope and effect of the Coupler Provision of the Federal Safety Applianсe Act. Space prevents even a listing of all the cases which have considered these provisions, let alone an analysis thereof. Without exceptiоn they have held that the Act requires that cars be so equipped that they will couple automatically by impact and can be coupled and uncoupled without the necessity of persons going between them.
2
Without exception the cases have held that operating a car on which the drawbar is so far out of line as tо prevent automatic coupling violates the Act and imposes absolute liability.
3
This principle of law was restated by the Supreme Court in the late case of Affоlder v. New York, C. & St. L. R. Co.,
The trial court correctly instruсted the jury that the only questions of fact were, was the drawbar so far out of alignment as to prevent automatic coupling of the two cars, and were appеllant’s injuries the proximate result, if the first queston was answered in the affirmative? Appellee adduced sufficient evidence to take these questions to the jury for its determinаtion and its determination is supported by substantial evidence.
Appellant’s contention that the court erred in overruling its supplemental motion for a new trial is predicated on the discovery of new evidence after the trial. The facts which appellant asserts entitle it to a new trial on this ground are these: Before trial aрpellant took appellee’s deposition in which it asked appellee whether prior to the date of this accident he had ever suffered any injury to his bаck; whether he had suffered any injury from any other cause; and whether he had had any other injury for which he had received medical attention. In general, he answered in the negative or answered none that he could remember. When appellee was on the witness stand, he indicated hopitalization in a veterans’ hospital. Appellant states that this was the first instance it had notice of such hospitalization; that thereafter it made an investigation and ascertained he had made appliсation to the Veterans’ Administration claiming disability; that the claim was disallowed because not service connected ; but that he was diagnosed as a constitutional рsychopath. The application also revealed he had claimed that he had had stomach ulcers.
In Marshall’s United States Auto Supply v. Cashman, 10 Cir.,
Affirmed.
Notes
. Atlantic City R. Co. v. Parker,
. O’Donnell v. Elgin J. & E. R. Co.,