ATCHISON RY CO v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY

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

ATCHISON, T. & S. F. RY. CO. v. SUPERIOR COURT IN AND FOR CONTRA COSTA COUNTY et al.†

Civ. 10803.

Decided: May 06, 1938

Robert Brennan, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, for petitioner. Clifton Hildebrand, of Oakland, for intervener.

Petitioner seeks a writ of prohibition to restrain the respondent court from trying a certain action entitled William W. Scarlett v. Atchison, Topeka & Santa Fe Railway Company.

Scarlett an employee of the defendant company, brought said action to recover damages for personal injuries received when he fell from a ladder on the side of a freight car. The cause was tried and he recovered judgment. An appeal was taken and the facts regarding the happening of the accident are fully set forth in the opinions of the several courts. Atchison, Topeka & Santa Fe Railway Co. v. Scarlett, 300 U.S. 471, 57 S.Ct. 541, 81 L.Ed. 748; Scarlett v. Atchison, Topeka, etc., Ry., 7 Cal.2d 181, 60 P.2d 462; Scarlett v. Atchison, Topeka & Santa Fe Railway Co., Cal.App., 43 P.2d 608. Certain further facts should be stated for the purpose of this discussion.

The allegations of Scarlett's complaint in said action were stated in a single count. It was his contention, however, that said allegations were sufficient to state two grounds of recovery, as follows: First, for common–law negligence under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; and second, for a violation of the Federal Safety Appliance Act, 45 U.S.C.A. §§ 11–16. As pointed out in Scarlett v. Atchison, Topeka & Santa Fe Railway Co., 7 Cal.2d 181, 60 P.2d 462, the liability for a violation of the Federal Safety Appliance Act is absolute and therefore the defenses of assumption of risk and contributory negligence are not available for any purpose in actions brought thereunder. This is not true, however, with respect to actions brought to recover for common–law negligence under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

After Scarlett had presented his evidence in the trial court, the defendant company started to present its evidence in support of its several defenses, including the defenses of assumption of risk and contributory negligence. Scarlett had testified, “I have never seen any brace rod of that kind or description on any freight car in my life before in switching cars. He had given other equally positive testimony on the same subject. To meet this testimony, the railroad company proceeded to offer evidence to show that Scarlett had worked on hundreds of freight cars equipped in the same manner as the car involved in the accident. Several freight train conductors under whom Scarlett had worked were called for this purpose and one of said conductors was giving his testimony. This testimony was apparently convincing and damaging to Scarlett's cause and there was considerable discussion between court and counsel during its presentation. Counsel for Scarlett stated to the court, “I might do this, if your Honor please, if your Honor will take a short recess, I will consider whether or not we want to base this solely on the Safety Appliance Act and that would certainly rule out all this evidence.” Following the recess, counsel stated, “Now if your Honor please, in the light of the discussion that was had before the recess, we have decided so far as the plaintiff is concerned that he is willing to base his case squarely upon the Safety Appliance Act, 45 U.S.C.A., section 11, and the provisions of the law relative to the Safety Appliance Act and we withdraw at this time the instructions proposed to your Honor under section 51, 45 U.S.C.A., as to another act, the Federal Employers' Liability Act and the obligation which is claimed under that act independently of the Safety Appliance Act to supply a safe place to work. Now does that make the issue clear which was suggested before?” Counsel for the company then said, “Let me ask, counsel, are you abandoning your claim for negligence under the Federal Employers' Liability Act?” Counsel for Scarlett replied, “Yes, I am basing the case squarely and flatly under the provisions of the Safety Appliance Act * * * which, of course, eliminates all this evidence as to any claimed or alleged assumption of risk and with that in mind we would ask the court to instruct the jury on the issue now before the jury to disregard the evidence introduced which might in any way bear on the issue of assumption of risk.” On the following day, counsel for Scarlett reiterated the foregoing abandonment, objected to further testimony on the issues of assumption of risk and contributory negligence and said objection was sustained. Near the close of the trial, the court instructed the jury, with the approval of counsel for Scarlett, as follows: “You are instructed that during the trial of this case, counsel for plaintiff in open court abandoned plaintiff's claim for negligence under the Federal Employers' Liability Act other than that connected with the Safety Appliance Act, and announced that plaintiff bases his case squarely and flatly under the provisions of the Federal Safety Appliance Act.” After the unqualified abandonment by Scarlett of the claim of negligence under the Federal Employers' Liability Act, a motion was made by the defendant for a directed verdict, which motion was denied.

The United States Supreme Court, in its decision above cited, held in effect that the company had strictly complied with the standards prescribed by the interstate commerce commission in the construction of the ladder in question and that Scarlett could not recover under the provisions of the Federal Safety Appliance Act. It further said (page 543), “In that view, Scarlett in abandoning his claim under the common–law rule of negligence abandoned the only possible ground of recovery.” The judgment was reversed and pursuant to the mandate of the Supreme Court of the United States, the Supreme Court of this state made its order on June 10, 1937, as follows: “It is ordered that the judgment appealed from is hereby reversed with directions to the trial court to enter judgment in favor of the defendants in the sum of Five Hundred and Thirty–three Dollars and forty–three cents ($533.43), and costs on appeal.”

Scarlett then filed in the trial court a memorandum of motion to set cause for trial and he also made a motion to be relieved of his abandonment of his alleged ground of recovery for negligence under the Federal Employers' Liability Act. The company resisted both motions. The trial court granted both motions and also entered judgment as directed by the Supreme Court in favor of the company and against the plaintiff for $533.43 and the costs on appeal.

It is apparently conceded by the parties that the decision of the Supreme Court of the United States finally and conclusively determined that there could be no liability imposed upon the company under the provisions of the Federal Safety Appliance Act. The question presented is whether the trial court had jurisdiction to make its orders setting the cause for a second trial and relieving Scarlett from his abandonment of the alleged ground of recovery under the Federal Employers' Liability Act.

Petitioner contends that the respondent court was without jurisdiction to make said orders and in our opinion this contention must be sustained. A reading of the decision of the United States Supreme Court and of the order of the Supreme Court of this state made pursuant to the mandate of the United States Supreme Court leads to the conclusion that the judgment which was entered by the trial court pursuant to directions of the Supreme Court of this state was a final judgment upon the merits. The trial court was therefore without jurisdiction to make the orders in question. The case of Taylor v. Darling, 22 Cal.App. 101, 133 P.503, is cited, but that case is clearly distinguishable. The court there said, “the record before us indicates that the judgment is not based on the merits.” Here the record before us indicates that the judgment was based on the merits. It appears that this was the view taken by the Supreme Court of this state for after the order was made by the Supreme Court on June 10, 1937, Scarlett applied for an order modifying the order of June 10, 1937, by striking out the direction to the trial court to enter judgment in favor of the company and by inserting a provision expressly granting a new trial. This application was denied by the Supreme Court on July 8, 1937. Having determined that the trial court is exceeding its jurisdiction, the writ of prohibition should issue as the remedy by appeal is not a plain, speedy and adequate remedy. Code Civ.Proc. § 1103.

Let the peremptory writ of prohibition issue.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.