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District Court of Appeal, First District, Division 1, California.


Civ. 10651

Decided: July 25, 1938

Edwin V. McKenzie, of San Francisco, for appellants. Clifton Hildebrand, of Oakland, Goodman & Brownstone, of San Francisco, and Louis Goodman, of Los Angeles, for respondent.

An action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the trustees of The Western Pacific Railroad Company to recover damages for personal injuries alleged to have been sustained by the negligent acts of the defendants. A jury returned a verdict for plaintiff and the defendants have appealed from the judgment entered thereon.

The complaint alleged that plaintiff was employed by defendants on a ditcher engaged in repairing the main interstate line of the railroad near Poe, California; that while thus engaged the ditcher was so negligently operated and maintained that plaintiff's foot was run over and injured. The answer denied negligence and alleged as defenses, assumption of risk and that the injury complained of was due solely to plaintiff's negligence. The case was tried on two theories, namely, the negligence of the engineer in charge of the ditcher in moving forward while plaintiff was in a position of danger, and its negligent maintenance in that by reason of a broken axle on the drive shaft it was out of control at the time of the injury. Defendants contend that the evidence was insufficient to sustain the judgment on either theory, and that the trial court erred in denying their motions for directed verdicts, and by its refusal of their request for separate verdicts on the two issues.

The ditcher consisted of a steam shovel mounted on a flat car. The apparatus was set on wheels which moved back and forth on rails laid upon and fastened to the platform of the car. It had what is known as a four wheel drive, the moving power being transmitted to all four wheels. One lever controlled its movement upon the rails mentioned, and by this means it was moved backward and forward by the engineer. There were no brakes controlling its movements, this being accomplished by reversing the lever or moving it forward. At the time of the accident the axle transmitting power to one set of wheels was broken. This occurred about two weeks before the accident, and both the engineer and the plaintiff knew the fact. The ditcher crew consisted of the engineer and the fireman. On the day of the accident plaintiff was acting as fireman, his duties being to keep steam in the boiler, to sand the rails on the flat car, and otherwise assist in operating the machine, the engineer being his superior. According to plaintiff he was directed by the engineer just prior to the accident to sand the rails on the flat car, the sand being obtained from a nearby locomotive. When the sanding operation was completed he mounted the flat car in order to enter the cab of the ditcher, which he attempted to do through a side door. It was testified that it was usual for the fireman to enter the cab through this door. He had been told by the engineer that the ditcher would not be moved while anyone was standing on the flat car. There were no steps to aid ingress through the door mentioned and a chain was placed across the same. It was his intention to grasp the chain and raise himself. In order to do so he placed his left foot on one of the rails on the flat car. As he did this, the apparatus was moved back slightly and then forward about two feet, one of the wheels passing over his foot and pinning it to the rail. The engineer at the time saw the position of the plaintiff except that from the cab he could not see that his foot was upon the rail. According to the engineer he saw from plaintiff's facial expression that an accident had occurred and he had at once reversed the lever, thus releasing the plaintiff. A part of the foot was crushed and it was subsequently amputated. The ditcher was inspected by the jury and the trial court, and its operation explained, but the evidence was conflicting as to the exact position of the parts immediately preceding and at the time of the injury. The plaintiff testified that when he mounted the flat car the boom was in a position lengthwise with the car and the apparatus was not moving. The engineer directed him to enter the cab but he was unable to do this by reason of the position of the boom. To enable him to enter it was necessary to wait until the boom was swung at an angle with respect to the car, and the apparatus was so constructed that the cab would revolve at the same time. The evidence fairly supports the conclusion that it was unnecessary in order to move the boom that the apparatus should be moved forward on the rails, and that the engineer was aware of the possibility of injuring the plaintiff if such a movement should be made. There was also testimony that the engineer had directed the plaintiff to enter the cab by another door, called the fireman's door, but according to the latter the door which he attempted to use was the usual means of ingress.

It is well settled that by the Federal Employers' Liability Act congress took possession of the field of employers' liability in interstate transportation by rail, and that the rights and obligations of persons within its provisions depend upon the act and applicable legal principles as interpreted by the federal courts (St. Louis I.M. & S.R. Co. v. McWhirter, 229 U.S. 265, 33 S.Ct. 858, 57 L.Ed. 1179; Chicago M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041), and an employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages. Gila Valley G. & N.R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521. However, it is not his duty to exercise care to discover extraordinary dangers that may arise from the negligence of those for whose conduct the employer is responsible, but he may assume that the employer or his agents have exercised proper care for his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person under the circumstances would observe and appreciate them. Chesapeake & O.R. Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016. This has been held to be the rule when the injury arises from a single act of negligence by the employer or his agent, creating a sudden danger to the servant of which the latter is without warning and could not reasonably have foreseen. Chicago R.I. & P.R. Co. v. Ward, 252 U.S. 18, 21, 40 S.Ct. 275, 276, 64 L.Ed. 430; Reed v. Director General, 258 U.S. 92, ,42 S.Ct. 191, 66 L.Ed. 480; Swank v. Pennsylvania R. Co., 94 N.J.L. 546, 111 A. 44; Pennsylvania R. Co. v. Swank, 254 U.S. 638, 41 S.Ct. 12, 65 L.Ed. 451; Illinois Central R. Co. v. Norris, 7 Cir., 245 F. 926. The burden of proof on the issue of assumption of risk is upon the employer (Kanawha & M.R. Co. v. Kerse, 239 U.S. 576, 36 S.Ct. 174, 60 L.Ed. 448) and unless the evidence is such that ordinary minds would not differ as to the proper conclusion such questions are for the jury. Chesapeake & O.R. Co. v. De Atley, supra. We are unable to agree with the defendants that, as was the case in Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601, but one conclusion on both issues might reasonably be drawn from the evidence. As stated, the engineer was aware of plaintiff's position with the one exception, that the latter's foot was upon the rail, and it was his duty to use reasonable diligence in analyzing the situation. We are satisfied that the circumstances were such as to convey to the mind of an ordinarily prudent person that plaintiff was in a position where the movement of the apparatus as described above would imperil his safety, and such movement might reasonably be expected to cause injury. Where this is the case knowledge of the danger will be imputed. The evidence on this issue as well as that of assumed risk was we think, sufficient to justify their submission to the jury.

There remains, however, the question whether in view of the evidence the submission to the jury of the issue of negligent maintenance was, as claimed by the defendants, prejudicially erroneous. The evidence shows that the axle transmitting power to one set of wheels was broken and it is a fair inference from the testimony that due to this condition the movement forward and backward on the rails would not be as readily subject to control as would otherwise have been the case. However, the record clearly shows that notwithstanding this the movement forward was stopped immediately upon the discovery by the engineer of the fact of the accident, and nothing therein supports the conclusion that the injury was caused or aggravated by the defect, or might have been avoided had it not existed. Under this state of fact we are convinced that there was no justification for the submission of this issue to the jury as was done by the instructions of the trial court. As we have said, the court was requested by the defendants to direct that the evidence was insufficient to support a verdict against them on this issue, and also to instruct the jury to return special verdicts upon the two issues, both requests being denied. Although as provided by statute, Code of Civil Procedure, section 625, the submission of questions of fact separately is a matter within the discretion of the trial court, nevertheless we are satisfied that defendants' request, that the jury be charged that the evidence was insufficient to warrant a finding against them on the issue mentioned, should have been granted. That such a refusal would constitute prejudicial error under the federal practice appears well settled (Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 27 S.Ct. 412, 51 L.Ed. 708; Chicago, St. Paul M. & O.R. Co. v. Kroloff, 8 Cir., 217 F. 525), the reasons being, as stated in the case last cited, a presumption of prejudice from error, and that the appellate court cannot know that it was not upon that baseless charge that the jury founded its verdict. Although the presumption no longer obtains in our own jurisdiction (Constitution, California, Art. 6, sec. 41/212), nevertheless as in Barrett v. Southern Pacific Co., 207 Cal. 154, 277 P. 481, it is not possible to determine from the record upon which of the two issues the jury found the defendants guilty of negligence. As the court there said (page 486): “Some of them may have found against the defendant on the one and erroneous theory, and the remaining jurors may have reached the same conclusion on the other theory.” We think, as was the court's opinion in the Barrett Case, that the error was prejudicial to a degree which reasonably supports the conclusion that the result was a miscarriage of justice.

The judgment is reversed.


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