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


Civ. 12905.

Decided: March 25, 1942

Lyndol L. Young, of Los Angeles, for appellant. James E. Martin, of Los Angeles, and Clifton Hildebrand and James A. Myers, both of Oakland, for respondent.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., brought by plaintiff against the defendant railway company to recover damages for his personal injuries. The injuries are alleged to have resulted from a violation of that provision of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., which imposes an absolute duty on a railway to provide an “efficient handbrake” on every car it transports.

It is undisputed that Newkirk was employed as a switchman by defendant, and at the time of his injuries was engaged in the performance of his duties. The accident occurred at about five o'clock on the morning of December 14, 1938, when in the light of his lantern he was engaged in setting a handbrake on a moving railway tank car as it was proceeding up a slight incline on a storage track on its own momentum, after having been cut away from a switch engine which had been pushing it. The Safety Appliance Act in question provides that it is unlawful for any common carrier that is subject to the provisions of the act to permit any car which is not equipped with “efficient handbrakes” to pass over its line; and if injury ensues as a proximate result of such failure to any one of its employees, it is liable to him absolutely, even though the employee knows of the defect in the instrumentality. It was the contention of Newkirk that the brake was defective and that this defect proximately caused his injuries. On the other hand, the defendant contended that the brake was not defective, and, instead, that plaintiff slipped on the rainsoaked platform adjoining the brake and as a result was precipitated to the ground below with resultant injuries. As the plaintiff did not allege any act of common–law negligence, his case rests wholly on the claim that the brake was inherently inefficient and that its inefficiency was the proximate cause of his injuries. A jury found for the plaintiff and assessed the damages at $8,000. A motion for judgment notwithstanding the verdict having been denied, judgment was entered on the verdict. The case is here on appeal from the judgment as entered.

The defendant is a California railway corporation which transports freight cars and their contents over certain railroad tracks located in the industrial area in the neighborhood of the city of Vernon, in Los Angeles County. In that locality it has a railway track or siding known as the “Flood” track, within its railroad yards. It is not shown by the record that it owns any engines or other railroad equipment. However, it has track connections with at least three interstate carriers and a great number of industrial concerns located in the neighborhood of its yard. It has no other rail lines except those in the general locality mentioned. It does not do business with the general public but only with railway carriers which have connections with its tracks. It moves railway cars on its own lines on instructions from these carriers, to and from its various track junctions with the carriers and industrial plants on its lines. The service rendered is wholly a switching service over its own lines, for which it makes a flat charge per car to the carrier served. It issues no bills of lading and is not a party to any through rates.

The tank car which is here involved was one of 63 cars which the Southern Pacific Railway Company hauled over its railway lines from Phoenix, Arizona, to Los Angeles. It was loaded with cotton–seed oil and was billed from Phoenix to Swift & Company at its sidetrack in the city of Vernon. The latter company had a switch track upon its property which connected only with the rails of the defendant. The car reached the Los Angeles yards of the Southern Pacific at about 6:50 o'clock p. m. on December 13, 1938. This car, along with other railway cars, was transported by the Southern Pacific from its yards to a rail junction with the defendant company, where the latter accepted it at about 1:40 a. m. on December 14, 1938, for transportation to the siding of Swift & Company. The handbrake of the car received several inspections before it was delivered to the defendant, and one by it immediately after the delivery. It was inspected by a car inspector for the Southern Pacific Company two hours prior to its delivery to defendant. At that time the inspector found the handbrake and all the mechanical appliances in connection therewith, including the pawl, ratchet and other parts, were efficient and in good working order. He so reported in writing to his employer. Another car inspector for the Southern Pacific inspected the brake a few minutes later and found it was efficient and in good working order. He testified that the pawl did not override the ratchet, and that if it had or if it had been otherwise out of order he would have put a “bad–order” card on it. Additionally, it was shown that when the car was weighed earlier in the evening two other car inspectors for the Southern Pacific had checked the brake and found it efficient and in good working order. Immediately after the car was received and placed on the tracks of the defendant company its car inspector, with twenty–seven years of experience in that capacity, inspected the handbrake and found nothing wrong with it.

A few moments before the accident the switching crew of the defendant company, of which plaintiff was a member, hooked a switch engine onto a “cut” of seven cars received from the Southern Pacific, of which the tank car was the last and farthest from the engine. The foreman directed the plaintiff to ride on the tank car during a flying switch operation in order to disconnect it from the other cars and to set the brake on it when it reached a certain locality on defendant's “Flood” track. The flying switch procedure was for the switch engine to back the line of cars fast enough to give the tank car sufficient momentum after it was uncoupled from the other cars so it would pass over a switch onto the “Flood” track and up a slight incline or hump, after which the brake would be set and the car brought to a stop.

The only eye–witness to the accident was plaintiff himself. He testified that after he had uncoupled the car from the cut of cars he mounted the car's ladder and proceeded along the platform on the side of the tank car towards the handbrake which was located on the far end. With his electric lantern slung over his arm––it being still dark––he proceeded to turn the brake. He had no difficulty with it. He tightened it sufficiently so the car would come to a complete stop within about fifteen feet, and engaged the pawl in the ratchet to hold the brake in place. He then reached with his left hand for the handhold on the car, keeping his right hand resting loosely on the brake wheel. His testimony is that at that moment the brake suddenly released itself, causing the brake wheel on which his hand was resting to spin around, and that this action of the brake caused him to fall from the car to an embankment alongside the track. As he fell on the embankment he started to roll towards the rails, and to protect himself, as he rolled, he stuck out his left hand towards the rail. As he did so the fingers of his left hand came in contact with the top of the rail, and before he could withdraw them the rear wheels of the tank car ran over and cut them off.

One of the switchmen, a witness for the plaintiff, testified on cross–examination that he took the plaintiff to a doctor a few moments after the accident happened. While there, in response to his inquiry as to how the accident happened, the plaintiff told him, in the presence of the doctor and another person, that he was setting the brake and he slipped and fell. After the case had been closed and the motion for nonsuit made, the trial court over objection reopened the plaintiff's case on direct. He was then permitted, over objection, to deny he had made the statement attributed to him by his own witness.

Plaintiff testified that after he had finished setting the brake the car was still moving, but slowly, and it was going up a slight incline. It is undisputed that the tank car stopped within fifteen feet of the point where plaintiff fell or was thrown from the car; that the incline was such that if the brake was not set or holding, the car would have rolled back; that the car did not roll back; that as late as three hours after the accident, when the son–in–law of plaintiff examined it, the brake was set and the car was where it had stopped. The only evidence produced by the plaintiff to sustain his claim that the handbrake was inefficient was given by his son–in–law, supported by certain pictures of the brake in question taken more than a year later. This witness testified that a few hours after the accident he found a half–inch vertical and a three–sixteenths–inch lateral play in the “dog,” or “pawl,” and that “the vibration from the brake–shoes and the brake shaking on the wheels when the car is moving would cause the ‘dog,’ if it had too much play in it, to slip out of the ratchet.” With this statement of the facts we turn to the legal questions involved.

The defendant contends that it is not a common carrier by railroad and that the plaintiff and defendant were not engaged in interstate commerce at the moment plaintiff was injured. We think that on the facts which we have already related the contention possesses no merit. The defendant, it seems clear, is “a terminal railroad for the industries and carriers with which it connects, and it serves as a link in the through transportation of interstate freight shipped to or from points in [the city of Vernon] over the connecting carriers.” United States v. California, 297 U.S. 175, 56 S.Ct. 421, 423, 80 L.Ed. 567; cf. United States v. Brooklyn, etc., Terminal, 249 U.S. 296, 304, 39 S.Ct. 283, 63 L.Ed. 613, 616, 6 A.L.R. 527. While it is true that the defendant does not hold itself out to the general public as a common carrier, yet its service involves the transportation of interstate cars and their contents as agent of the connecting carriers. As such it is as much engaged in interstate commerce as are its principals. That plaintiff and defendant were both engaged in interstate transportation at the moment plaintiff was injured we think is likewise clear. The tank car in question was still in interstate commerce, as it had been billed from Phoenix, Arizona, to the siding of Swift & Company in the city of Vernon, California, and not merely to a point on the line of the connecting interstate carrier. Its interstate character had not ceased while it was on the defendant's “Flood” track for the latter's convenience. Its interruption and deviation from the nearest route to its ultimate destination did not change the character of the shipment from one in interstate commerce to one in intrastate commerce. The act of plaintiff at the moment he was injured was an act in the furtherance of interstate transportation, required or demanded by his employer for its own ends in the performance of its duty to transport the car to the siding of the consignee. Accordingly, the trial court not only had jurisdiction of the action under the terms of the Federal Employers' Liability Act, but it was entitled as a matter of law on the undisputed facts to instruct the jury, as it did, that both parties were engaged in interstate commerce at the time of the accident. Indeed, as the evidence was undisputed, it was wholly unnecessary to instruct on the issue at all, and we think it would have been preferable for the court not to have done so.

A further contention of the defendant is that there is no substantial or credible evidence that the handbrake was inefficient or that its alleged inefficiency was the proximate cause of plaintiff's injury. Before proceeding to an analysis of the facts we turn to controlling decisions as a guide to determine where the fact line is to be drawn. The Safety Appliance Act is a substantive and not a remedial law. It imposes an absolute liability for all damages sustained by a person which are the proximate result of some defect in a railway vehicle, against the common carrier, interstate or intrastate, who is in possession thereof or on whose line the vehicle is being used. As the act makes the carrier an insurer as against enumerated defects in the vehicle, regardless of any knowledge thereof or of any negligence in respect thereto, it is obvious that the evidence must pointedly disclose there is a defect, as claimed, and that it proximately caused the injury. This is the view of the federal courts, whose decisions, and not those of the states, are alone controlling. Likewise, the character and amount of evidence required to sustain a claim of defect in the instrumentality, that the defect was the proximate cause of the injury, that the evidence is sufficient to warrant a verdict, and other evidential matters, are governed by the standards adopted by the federal courts and not by the laws or decisions of the jurisdiction in which the case is tried. Bevan v. New York, etc., Co., 132 Ohio St. 245, 6 N.E.2d 982––certiorari denied by the United States Supreme Court 301 U.S. 695, 57 S.Ct. 924, 81 L.Ed. 1351. Indicative of the strictness of the rules laid down and as a corollary of the tests we must follow in our analysis of the facts are these cases: Burnett v. Pennsylvania R. Co., 6 Cir., 33 F.2d 579; Travelers' Ins. Co. v. Randolph, 6 Cir., 78 F. 754, 759, 24 C.C.A. 305; Hardy–Burlingham M. Co. v. Baker, 6 Cir., 10 F.2d 277; New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Gulf, M. & N. R. Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; Northwestern Pacific R. Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462.

We think there is merit in the contention of appellant herein that there was no substantial or credible evidence to sustain the verdict. In the first place, there is no direct evidence that the brake was inefficient at the time of the accident. Such evidence as there is we think fails to overcome the physical facts. While the jury was entitled to disbelieve all the testimony produced by the defendant, it was not entitled to infer that the pawl overrode the ratchet, when the physical fact is it could not have done so on the evidence produced by the plaintiff. Plaintiff testified that while he was setting the brake it appeared to him that it was an efficient brake; that it operated normally; that it was effective in slowing up the car to the extent that it was just creeping along before coming to a stop; that he noticed by the light of his lantern that the pawl had properly engaged the ratchet and was holding properly; that the pawl was not overriding the ratchet when he set the brake; that he did not notice anything was wrong with the brake, its ratchet or pawl, and that if he had he would not have turned it loose. The only fact he testified to in connection with the brake was that the brake wheel unexpectedly turned clockwise, and with his right hand resting lightly on it he was thrown from the car. The testimony of plaintiff's son–in–law as to the extent of the play in the “dog” fell short by at least one–sixteenth of an inch of showing that the pawl could possibly have overridden the ratchet. The only evidence tending to show that the pawl at the time of the accident might have overridden the ratchet was the pictures taken of the brake assembly more than a year after the accident occurred, and the opinion testimony of plaintiff's son–in–law. The pictures in the record are not too clear, but for our purpose we will assume that they show that the pawl could have overridden the ratchet. But we think the pictures were erroneously admitted in evidence, as the conditions were not shown to be sufficiently similar or identical. The only evidence to indicate that there was no change in the condition of the brake assembly was the testimony of the son–in–law. But that there was a change, notwithstanding his testimony, is show by the fact that on his own measurements, made on the morning of the accident, it would have been physically impossible for the pawl to have overridden the ratchet. His opinion that the stress on the brake shoes would cause the pawl to override the ratchet is contrary to the physical facts testified to by him. Accordingly, it follows there was no substantial evidence that the pawl did override the ratchet.

If, then the brake wheel spun clockwise, as plaintiff testified, there is no evidence that it did so because the brake was inefficient, unless we may assume that the brake could not have done so unless it was inefficient. We think we may not make that assumption and that the jury was not entitled so to infer without evidence pointing to the fact. When we bear in mind that the plaintiff's own witness, Everly, although directly contradicted by plaintiff, testified that plaintiff told him at the doctor's office that he was pulling up on the brake and slipped and fell; that the undisputed evidence is that the incline was such that the car would have rolled back down the incline if the brake had not been set; that the brakes were found set three hours after the accident; that the car was then only fifteen feet beyond the point where the undisputed facts disclosed the accident occurred; that the switching crew had not touched it; that the evidence, contradicted only by plaintiff, is that a mist was falling for a half–hour before the accident; that plaintiff approached the brake contrary to well established custom for safety; that he falsified about his age when he applied for the job, making it appear that he was forty–four when he was in fact sixty–three; that he was injured when he was sixty–eight––in conformity with our charitable persuasions we shall classify his testimony and that of his son–in–law as incredible only. To permit the verdict to stand on the tenuous foundation upon which it rests would, in our opinion, be nothing short of a travesty on justice. The opinion expressed by plaintiff's son–in–law to the effect that vibration from the brakeshoes could cause a pawl to slip out of its ratchet was predicated on facts not shown in the record. For the jury to infer from this opinion, thus expressed, that the brake was inefficient would be pure speculation.

As in our judgment the verdict cannot be upheld, we need not consider appellant's claim that the instructions dealing with plaintiff's misrepresentations to defendant were inadequate. In view of a new trial, we need only repeat that the views expressed by the Supreme Court of the United States on that subject control.

Inasmuch as the case must be reversed for a new trial we think it proper to comment briefly on the instructions. The instructions given to the jury dealt with the case as though it were an ordinary negligence case. This was error, but the error was the fault of the appellant. The case is not a negligence case, in the usual sense. There was no count based on any act of common–law negligence, but instead a count based wholly on the violation of a provision of the Safety Appliance Act. If there was such a violation the liability of defendant was absolute, whether or not it was negligent. If there was a violation of that act and the injury resulted proximately from it, the plaintiff was entitled to recover. Accordingly instruction after instruction dealing with definitions and various phases of negligence were entirely out of place and should not have been given.

Judgment reversed.

I dissent. In my opinion the evidence is sufficient to support the jury's finding that the handbrake was defective.

HANSON, Justice pro tem.

McCOMB, J., concurred.

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