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District Court of Appeal, First District, Division 2, California.


Civ. 9722.

Decided: April 21, 1936

Arthur Bergin Dunne and Dunne & Dunne, all of San Francisco, for appellant. M. Mitchell Bourquin, of San Francisco (Clinton L. Markley, of San Francisco, of counsel), for respondent.

Plaintiff had a verdict for $30,000 for damages for the death of her husband who was killed while employed as a member of a switching crew in the freight yard of the defendant company. The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, and charged negligence in the attempt to couple a group of standing freight cars. The defendant based its defense and rested its appeal on the main grounds that there is a failure of proof of negligence and that the risk was assumed by the employee. As the decision upon these grounds must control, it is unnecessary to consider the other grounds raised in the attack upon the judgment.

The facts are without material dispute. The only conflicts relied upon by the parties are more matters of interpretation and construction of the evidence than a conflict upon the facts. The deceased and another employee were walking through the freight yard of the Southern Pacific Company maintained at Bayshore just south of San Francisco, and attempted to cross a track upon which seven empty cars were standing. As they were in the middle of the track, these cars were struck by a moving train of thirty-three cars for the purpose of making a coupling. The coupling failed and the standing cars moved so suddenly that the deceased was unable to get clear of the track. His companion was struck by the edge of the first freight car but immediately got to his feet, climbed to the top of that car, and gave a signal to stop the train. The cars were practically at a stop when the signal was given, the movement from the point of contact with the deceased being variously estimated as between 48 and 71 feet. There is some dispute between the witnesses as to the speed of the cars at the time of the impact, as to the time when signals were given to stop the main train, and as to the clearance which deceased and his companion gave in endeavoring to pass in front of the freight car, and these will all be referred to hereafter. The material facts are, however, that the defendant was engaged in a common and routine railroad operation which was well known to all its employees and the nature of which was in itself a warning of danger to them and of such a character that no other notice or warning could be required from the defendant. The defense of assumption of risk is based upon these facts and also on the rule of the company which specially required the employees to expect trains or cars to be moved at any time on any track, and the warning to such employees to take care to avoid injury to themselves or others which might arise from these conditions.

The case differs from the ordinary action of negligence, where the question of the sufficiency of the evidence is so frequently left to the responsibility of the jury, because the action is based on the Federal Employers' Liability Act, and the plaintiff must recover, if at all, under the terms of that act as interpreted by the federal cases. For this reason, it is not sufficient for plaintiff to show that injury or death was incurred while the employee was engaged in the course of his employment. It is essential to show that the defendant was guilty of some breach of duty owed to the deceased in respect to the matter charged as negligence. Chesapeake & O. R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 43, 74 L.Ed. 207; Baltimore & O. S. W. R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566. It was said in Means v. Southern California Railway Co., 144 Cal. 473, 478, 77 P. 1001, 1 Ann.Cas. 206, that in order to constitute actionable negligence it must appear that the injury complained of resulted from a failure on the part of the defendant to discharge a duty or obligation which the defendant was under to protect the plaintiff from injury. But the leading and controlling case is the Mihas Case, supra, where the facts are closely similar. Mihas was injured while crossing over standing cars which were suddenly struck in a switching movement. As to this point the Supreme Court said, “If there was a violation of duty, therefore, on the part of the railway company, it was not of a duty owing to Mihas; and the rule is well established that it is not sufficient for a complainant to show that he has been injured by the failure of another to perform a duty or obligation unless that duty or obligation was one owing to the complainant.” Here there is no evidence of any rule or custom to give warnings to men working around the yard when cars are being moved or couplings are being attempted. There is no evidence of a duty to set brakes on standing cars when couplings are being made, and no evidence of any duty on the part of the engineer to give warning by whistle or bell from the locomotive, and no evidence that any sign or notice should be attached to the standing cars before a coupling is attempted. To the contrary, the evidence is that when a coupling will not be attempted a warning that standing cars are not to be moved is given by placing a blue flag on the end of the car. There is no evidence of any duty to place a man at the end of the standing cars to give warning of the attempted coupling to employees or others. The only evidence of a duty in this respect related to the maintenance of a man at the point of attempted coupling, and whether this man was in position at the time or not is immaterial because he could not have been seen or heard by the deceased if any warning had been attempted.

On the issue of defendant's negligence there is no evidence of any breach of duty in respect to the deceased. The complaint charged that the defendant negligently and without notice or warning attempted to make the coupling with such force and violence and without using any precaution to control the movement of the cars that it resulted in the injury to MacDonnell. But the mere allegation that these acts were done without warning if no warning were required, and without precautions to control the movement of the cars if such precautions were not required, does not plead any act of negligence upon which the plaintiff could recover in this case. The cars were being moved in defendant's yard, and the defendant had the right to move them as it saw fit. Whatever duty it may have owed to others using the yard at the same time is a question which is not pertinent here since the plaintiff must recover on proof consistent with the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, which expressly recognizes the defense of assumption of risk as a defense in bar to the action.

Upon this issue the authorities are practically unanimous. The situation confronting the deceased was similar to that referred to in Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 216, 72 L.Ed. 513, where the Supreme Court said, “In any event plaintiff assumed the risk. He was familiar with the yard and width of the space between the tracks and knew that cars were liable to be shunted without warning to him.” In accord are: Northwestern Pacific R. Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; Chesapeake & O. R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758, and Chesapeake & O. R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207.

The respondent relies upon Great Northern Ry. Co. v. Mustell (C.C.A.) 222 F. 879; Payne v. Connor (C.C.A.) 274 F. 497; Lehigh Valley Railway Co. v. Scanlon (C.C.A.) 259 F. 137; Director General of Railroads v. Templin (C.C.A.) 268 F. 483 and Reed v. Director General of Railroads, 258 U.S. 92, 42 S.Ct. 191, 66 L.Ed. 480. Appellants correctly answer that all these cases were either decided before the Mihas Case or made no reference to it. Some of these cases are discussed and reviewed in Pacheco v. New York, N. H. & H. R. Co. (C.C.A.) 15 F.(2d) 467, where the conclusion was reached that in view of the decisions of the United States Supreme Court it must be held that among the risks assumed is that of inattention of other employees in train movements. The Mihas Case is so closely parallel to the case at bar that we can see no escape from the application of its rule. For these reasons, we are compelled to the conclusion that the injury here complained of was the result of a risk which the deceased assumed as a part of the constant and necessary operation of the cars within the yard, and that, since the defendant had the right to move the cars within the yard as the necessities of its business required, the only duty it owed plaintiff was to “refrain, if possible, from injuring him in case his precarious condition had been discovered.” The failure to prove any breach of duty on the part of the defendant under the circumstances of this case fails to charge the defendant with actionable negligence. Hinson v. Atlanta & C. Air Line Ry. Co., 172 N.C. 646, 90 S.E. 772.

The judgment is reversed.

NOURSE, Presiding Justice.


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