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


Civ. 14687.

Decided: August 08, 1951

Dunne, Dunne & Phelps and R. Mitchell S. Boyd, San Francisco, for appellant. Leo Fried, Oakland, William P. Callahan, San Francisco, of counsel, for respondent.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. for failure to provide an employee a safe place for performance of services. A jury awarded plaintiff, the employee, $18,000 damages. Defendant appeals.

Questions Involved.

1. Was plaintiff at time of injury engaged in interstate commerce?

2. Is there any evidence of defendant's negligence?

3. Was the verdict excessive?


There is practically no conflict in the evidence save as to the inferences which might be drawn therefrom. Plaintiff, 64 years old, has worked for defendant since 1918. He is a lumber inspector. Whenever defendant wanted to purchase lumber from a lumber company plaintiff would go to the latter's premises, inspect their product, and, at his discretion, accept suitable lumber, which he would grade and tally and accept for shipment. He was in complete charge of the inspection operation and was ‘his own boss.’ Three or four months prior to the accident he was sent to inspect ties at the Cheney Lumber Company at Central Point, Oregon, by his superior, defendant's chief lumber inspector. The dock where the ties were loaded was the property of the Cheney Lumber Company. The dock, approximately 150 to 200 feet long, was between 10 and 11 feet above the defendant's spur tracks. Cheney employees piled the ties on the dock. Plaintiff's duties were to examine ties and designate those acceptable. These were then pulled out by Cheney employees and loaded in defendant's freight car standing on the spur. Inspectors were instructed to turn the ties over and inspect all four sides. Generally this turning over was done by Cheney employees although occasionally plaintiff helped turn them over and load them. The ties could not be loaded without the inspector's approval. Also he directed the loading. The ties were the property of Cheney and did not become the property of defendant until accepted and paid for.

On the day of injury, the ties were piled about 7 feet high, about 15 ties high. The ends of some were even with the end of the dock while others were protruding beyond it a little. There was no room on the dock in front of the ends of the ties. Plaintiff was standing on the dock beside the pile of ties. He leaned over the edge to inspect the ends which ‘is the only way you could inspect them.’ He was standing on his right foot, leaning over the pile, his right hand against the pile, his left foot not on the dock but in the air. He was leaning over as far as he could with his back bent down. After he looked over the ties as far as he could reach and see he tried to step back and to step on his left foot. He was still off balance. Something was under that foot ‘whether it was a pebble or piece of wood or something’ it threw him off and he fell to the railroad track. ‘* * * there was something under the bottom of my foot that made my ankle twist a little.’ He received the injury hereafter discussed. In a report to defendant made four days after the accident he stated, ‘stepped on piece of bark; lost balance, fell over edge of dock * * *’

1. Interstate Commerce.

The Federal Employers' Liability Act applies only to employees of a railroad who are employed in interstate commerce. ‘Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter. Apr. 22, 1908, c. 149, § 1, 35 Stat. 65; Aug. 11, 1939, c. 685 § 1, 53 Stat. 1404.’ 45 U.S.C.A. § 51.

Of the ties accepted by plaintiff and loaded into defendant's cars, some were shipped by defendant to Mexico and other states for use by defendant and other railroads. Some were used by defendant's main line. Some were put in new tracks and others in replacements for old worn out ties. Some were put in the tracks without first being treated. Defendant contends that plaintiff was not engaged in any duty which could be considered under the above definition, as being in interstate commerce. Defendant relies strongly on Holl v. Southern Pacific Co., D.C., 71 F.Supp. 21. There plaintiff Holl was employed by the Southern Pacific which is engaged in both interstate and intrastate commerce. She was a clerk in the freight claim department. When a claim for lost or damaged freight came in, she wrote, from memory, on a form, the route over which the freight had travelled. From this, a typist made a form which went to the auditor who allowed the claim and apportioned the loss to the various carriers over the lines of which the shipment had been carried. In an action under the Federal Employers' Liability Act for injuries received in the scope of her employment the court held that her work ‘was in no way a part of interstate commerce or in furtherance of it.’ 71 F.Supp. at page 23. It pointed out, too, that ‘The plaintiff had nothing to do with the allowance of the claim, or distributing it to the carriers. Her work was one of a chain of acts, which finally resulted in the allowance of the claim.’ 71 F.Supp. at page 23. It is obvious that Holl's duties can in no wise be compared with those of plaintiff who selected ties which were then taken by the railroad to places where they were placed in the tracks used in interstate commerce. This act certainly was as much in furtherance of interstate commerce or as closely and substantially affecting such commerce as the acts in some of the cases cited with approval in the opinion in the Holl case as being acts in interstate commerce. Thus, in Harris v. Missouri Pac. R. Co., 1944, 158 Kan. 679, 149 P.2d 342, employees loading barrels of oil to be used in filling lanterns and oil cans used in oiling railroad engines and machines; in Trucco v. Erie R. Co., 1943, 353 Pa. 320, 45 A.2d 20, a blacksmith's helper engaged in making locomotive parts; in Northwestern Pacific Ry. Co. v. Industrial Acc. Comm., 1946, 73 Cal.App.2d 367, 166 P.2d 334, a brakeman being transported on company conveyance after leaving his train one car of which was in interstate commerce; in Agostino v. Pennsylvania R. Co., D.C., 1943, 50 F.Supp. 726, a trackman employed in spreading cinder ballast in surfacing tracks; an employee of a roundhouse, the facilities of which were used in housing and preparing locomotives Zimmerman v. Scandrett, C.D.1944, 57 F.Supp. 799; a member of section crew on way to obtain tools, Patsaw v. Kansas City Southern Ry. Co., D.C.1944, 56 F.Supp. 897; a mechanic's helper assisting in repairing automatic stoker in a locomotive, Edwards v. Baltimore & Ohio R. Co., 7 Cir., 1942, 131 F.2d 366; a guard at a terminal, Albright v. Pennsylvania R. Co., 1944, 183 Md. 421, 37 A.2d 870; a signalman repairing lighting fixtures of a railroad station, Scarborough v. Pennsylvania R. Co., 1944, 154 Pa.Super. 129, 35 A.2d 603; an employee whose duty it was to clean up the railroad's tracks used partly to carry interstate commerce, Piggue v. Baldwin, 1942, 154 Kan. 708, 121 P.2d 183; an employee loading posts to be used in repairing roadway, Rainwater v. Chicago, R. I. P. Ry. Co., 1945, 207 La. 681, 21 So.2d 872; a railroad's emergency flood control worker, whose duty it was to fill sand bags and place them on a flat car which was to move over tracks used for movement in interstate commerce, the bags being placed along the tracks to protect them from existing flood waters, Skanks v. Union Pacific Railroad Co., 1942, 155 Kan. 584, 127 P.2d 431; a locomotive fireman on train engaged in moving empty coal cars coming from outside state to coal mines in state for loading and transporting coal to other states, Louisville & N. R. Co. v. Stephens, 1944, 298 Ky. 328, 182 S.W.2d 447; were all held to be engaged in interstate commerce. Plaintiff here was ‘furthering, i. e., promoting or helping along, present or future interstate commerce.’ 71 F.Supp. at page 24. He ‘was doing something which laid the foundation for, and was in aid of another or subsequent act of interstate commerce or a step towards it.’ 71 F.Supp. at page 25. This was true even though it might be said that he was engaged in a ‘borderline occupations'. 71 F.Supp. at page 25. In Shelton v. Thomson, 7 Cir., 148 F.2d 1, 3, the court said: ‘A car can not travel even in interstate commerce, without wheels.’ Neither can it travel without tracks laid on ties.

The holding of the courts on what constitutes service in interstate commerce has not been uniform. There are some jurisdictions where the interpretation has been a very limited and narrow one. Defendant has cited some of the cases which, while not on facts similar to those in our case, lend comfort to the contention that plaintiff was not acting in interstate commerce. However, those above mentioned taken from the Holl case established the better rule. A reading of the opinion in Northwestern Pacific Ry. Co. v. Industrial Acc. Comm., supra, 73 Cal.App.2d 367, 166 P.2d 334, in which a number of California decisions are reviewed shows that California follows the more liberal rule.

2. Negligence.

To recover under the act, the employee must prove that his injuries were proximately caused by the negligence of the employer. Blunk v. Atchison, T. & S. F. Ry. Co., 97 Cal.App.2d 229, 217 P.2d 494. Here the negligence charged is that the employer negligently failed to provide a safe place for plaintiff to perform his duties. ‘Under the Employers' Liability Act the duty which rests upon defendant is * * * to use reasonable care in furnishing its employees with a safe place to work * * *. Negligence as used in the act is the violation of that duty.’ Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 977, 217 P.2d 45, 47. Plaintiff testified that in Longview, Tacoma, Eugene and Seattle (docks where plaintiff inspected lumber for defendant) there was a custom that the mills keep the lumber away from the edge of the dock ‘so you can step up and take a look at it.’ Most places have carriers and lift trucks ‘which give you ample place to walk around and inspect your lumber and also turn it and see every piece of it.’ About five weeks before the accident he discussed the condition of the platform at Central Point with his immediate superior (the one who sent him there). Plaintiff came near falling off one day and when he went to Portland (the superior's headquarters) ‘we started to talk about the different mills and how they piled their lumber and so forth and so on, and I suggested that it wasn't—they didn't leave room enough down at Central Point.’ The Cheney employees put the ties on the wharf in front of the place where defendant's car is spotted to receive them. Cheney did not have lift trucks to deposit the ties on the dock. The ties were unloaded from a six wheel lumber truck which brings them from the woods. Plaintiff did not tell them to move the ties back from the edge of the dock because ‘That wouldn't do any good,’ and because he did not have charge of the dock. Lots of times the ties were hauled in at night. It appears from plaintiff's testimony that plaintiff had no control over the manner in which Cheney employees placed the ties on the dock; that for the first three months they had piled them even with or beyond the edge of the dock; that in order to inspect the ends it was necessary to lean over the edge; that through information given by plaintiff to his superior after plaintiff had almost fallen off the dock, defendant knew that plaintiff was working in an unsafe place. This is sufficient to constitute negligence on the part of defendant in failing to provide plaintiff with a safe place in which to work. The fact that the place was not in the control of defendant but in Cheney does not change the situation. Defendant, after being warned, continued to require plaintiff to work there. It is no answer to say that plaintiff in a sense was his own boss at the scene. He had no control over Cheney employees (other than to have them turn the ties over for inspection and on acceptance to direct the loading of them on defendant's cars) nor over Cheney company. While it was an ordinary lumber dock and nothing inherently dangerous about it, it became a dangerous place to defendant's employee because of the custom of Cheney to so pile the ties as to require plaintiff to lean over the edge in order to perform his duties. The danger came from requiring plaintiff, in order to perform his duties, to place himself in a dangerous position with reference to the dock and pile. Thus, there was evidence from which the jury might reasonably (and did) infer that plaintiff's fall was the proximate result of defendant's failure to provide him with a safe place in which to work, after knowledge of the type of place. Douglas v. Southern Pacific Co., 151 Cal. 242, 90 P. 538, is not applicable here. There the employer had provided a safe pathway through its shop for its employees. Plaintiff was injured while taking another pathway which was dangerous. The court applied the rule that where there are two methods by which a service may be performed, one perilous and the other safe, an employee who voluntarily chooses the perilous rather than the safe one cannot recover for an injury thereby sustained. The same rule was the basis of the decision in In re Emerson's Estate, 191 Iowa 1386, 182 N.W. 376. In our case, plaintiff's testimony was, in effect, that there was no choice of methods of inspecting the tie ends which protruded over the edge of the dock. The one he used was the only one available. In this respect, it is important that although the evidence shows that defendant employs other lumber inspectors, it did not produce any testimony that this method of inspection is improper. Lemmermann v. Pope & Talbot, 42 Cal.App. 192, 183 P. 467, like the Douglas case, supra, 151 Cal. 242, 90 P. 538, was not brought under the Employers' Liability Act and was a case in which plaintiff voluntarily selected a path of danger rather than the safe one open to him. The court held plaintiff's negligence to be the sole proximate cause of the accident. In Hontz v. San Pedro, L. A. & S. L. R. R. Co., 173 Cal. 750, 161 P. 971, it was held that plaintiff was guilty of contributory negligence as a matter of law where for no apparent purpose he left a place of safety and went to a place of danger. It was also held that defendant had met its duty of exercising reasonable care to see that the premises were in a safe condition. In Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601, also cited by defendant and which is an action under the act, the circumstances were greatly different than in our case. The court there said 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. p. 603, that there were several places in which plaintiff could have stood to perform his duties, all of which were reasonably safe and well adapted to the performance of his work, but that he voluntarily abandoned a safe position and placed himself in a position of extreme danger in a place not furnished for the performance of the work, ill adapted thereto, and one of obvious danger. The court held that the sole cause of the accident was plaintiff's own negligence.

Defendant has cited cases to the effect that where a danger is obvious to the employee, the employer is under no duty to warn him of that danger. These cases have no application here. This action is not brought on the theory of failure to warn but on failure to provide a safe place to work. ‘The duty of warning and instruction is entirely distinct from and independent of the duty of furnishing reasonably safe premises and appliances, as much so as the duty of furnishing reasonably safe premises is distinct from reasonably safe appliances.’ W. A. Gains & Co. v. Johnson, 133 Ky. 507, 105 S.W. 381, 384.

Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 P. 147, is relied upon by defendant, first, to show that defendant was under no duty to warn plaintiff. As stated above, this rule is not applicable here. Secondly, it is to show that defendant is under no duty to plaintiff because the dock was not under the control of defendant. The case discusses at some length the obligation of the employer to his employee where the latter is working on premises of a third party, and holds that, in the absence of notice of the dangerous condition of the premises, the employer generally will not be held liable. In our case, however, the employer had notice. In Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533, cited by defendant, this rule is applied. It was pointed out that there was no proof that the employer railroad knew of the dangerous condition on the third party's premises and hence the general rule of non-liability applied.

Defendant contends that plaintiff should have insisted that the Cheney employees change their method of piling ties on the dock, or else required them to remove the piles one by one, so that he could inspect the ends without having to lean over the edge of the dock; also that he should have made a stronger complaint to his employer of the conditions than he did. As to the first, he testified that he had no control over the Cheney employees in this respect. A realistic consideration of this situation indicates that plaintiff was in no position to cause Cheney to change its method of operation. As to further complaint to defendant and the fact that plaintiff knew of the danger, the situation is well covered by the following statement from 35 Am.Jur., § 139, p. 569: ‘Notwithstanding the theoretical liberty of every person to contract for his labor or services, and his legal right to abandon his employment if the conditions of service are not satisfactory, practically—by stress of circumstances, poverty, the dependence of his family, scarcity of employment, competition, or other conditions—the laborer frequently has no choice but to accept employment upon such terms and under such conditions as are offered.’

3. Verdict.

Plaintiff suffered a crushing fracture of the heel bone. About a week after the accident, at the Southern Pacific Hospital a closed reduction with pin traction was done and he was immobilized in a cast. He remained in bed in traction for over a month. During that period three separate casts were placed on his foot. He left the hospital August 1, 1947, on a temporary discharge to go home. He was ordered back and returned August 24, remaining three days when a new cast was put on. He returned September 29, remaining until October 2, receiving another cast. He returned October 30, remaining until November 1 and received another cast. December 29 he returned, obtained a new cast and remained until January 6, 1948. He returned March 4, remaining two days and was discharged to return to work. On returning to work he had ‘throbbing pain night and day’ and usually used a stick for a cane. In November, 1948, he returned to the hospital. His ankle was so sore he had to lay off work the whole month. On the 5th of March, 1950, he returned to the hospital for an operation and was still there at the opening of the trial, April 3. (He was brought to court on a stretcher.) On March 17 the operation, a triple arthrodesis, was performed to relieve the pain from which he had been suffering nearly two years. That was a fusing of the three bones beneath the astragalus into a single joint. The side motion of his foot will be gone. The up and down motion is limited about 25 per cent. In turning the foot inward and outward there is about 50 per cent limitation. In all probability the pain will be eliminated. A disability for about six months after the trial was estimated. He will probably have some difficulty in walking on uneven ground. He will have to wear special shoes. Plaintiff's loss of wages including this estimated period of disability is approximately $3,000. The evidence is not clear as to plaintiff's exact age. The court instructed the jury that the life expectancy of a person aged 61 is 13.47 years. The verdict is $18,000, approximately $15,000 of which is for pain and suffering and disability.

Considering plaintiff's injuries, the fact that the evidence shows that he will always have a stiff left foot, that he will have difficulty in walking on uneven ground, the considerable pain he experienced, the present value of the dollar, plaintiff's life expectancy, and the fact that the claim of excessiveness was presented to the trial court on the motion for new trial and that the motion was denied, we cannot say that the verdict was such as to indicate passion or prejudice on the part of the jury. ‘Before this court can upset the award it must appear to us that it is so excessive as to indicate that the jury was motivated by prejudice or passion. Particularly is this so, where, as here, the trial judge on motion for new trial has passed upon the award. Nor is it a question of what damages this court would award in the first instance nor are awards in other cases necessarily a criterion of the proper award in the instant case. The types of injury, the age, physical condition, financial status of the various plaintiffs, and the value of the dollar at the time of injury, vary so greatly that it is almost impossible to find a case where the situation is on all fours with a case at bar.’ Germ v. City & County of San Francisco, 99 Cal.App.2d 404, 421, 222 P.2d 122, 134.

Defendant urges that plaintiff was guilty of contributory negligence and hence, under the act, while it will not bar recovery, ‘the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee’. Employers' Liability Act, § 53. Probably we can assume from the amount of the verdict that the jury made no diminution for contributory negligence. Whether an employee, under the circumstances of this case, was guilty of contributory negligence is a matter in the first instance for the jury to determine, and then on motion for new trial for the trial court. The jury were fully and fairly instructed on contributory negligence. As we cannot say as a matter of law that plaintiff was guilty of such negligence, we cannot disturb the verdict for lack of diminution, if there was such lack. The following quotation from Power v. California St. Cable R. R. Co., 52 Cal.App.2d 289, 292–293, 126 P.2d 4, 5, is applicable to other contentions made by defendant: ‘Furthermore and by way of comparison the company calls attention to verdicts rendered in numerous other cases. It is well settled, however, that there is no absolute rule for determining whether a verdict is excessive (Morgan v. Southern Pacific Co., 95 Cal. 501, 30 P. 601), and while in passing upon the question the reviewing court may consider amounts awarded in similar cases involving equally serious injuries (Osrowitz v. Market Investment Co., 40 Cal.App.2d 179, 104 P.2d 681), in the final analysis the question in each case must be determined from its own peculiar facts and circumstances (Kirschbaum v. McCarthy, 5 Cal.2d 191, 54 P.2d 8), and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is allowed ordinarily in such cases.’

The judgment is affirmed.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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