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


Civ. 10982

Decided: February 23, 1940

Edwin V. McKenzie, Ernest I. Spiegl, and Arthur B. Dunne, all of San Francisco, for appellants. Goodman & Brownstone, of San Francisco, and Clifton Hildebrand, of Oakland, for respondent.

The defendants appeal on a bill of exceptions from a judgment for plaintiff following a verdict for $20,000 for injuries incurred in the course of his employment as a switchman for the Western Pacific Railway. The defendants are trustees of the employer railroad corporation, pursuant to the provisions of section 77 of the National Bankruptcy Act, 11 U.S.C.A. § 205, and are sued in that capacity.

The plaintiff was injured when he fell from the lead end of a string of twelve box cars which were being pushed by an engine in the course of switching operations in the company's yard at Keddie, California. At the time of the accident plaintiff was walking along the top of the lead car preparing to set the brakes when the cars came to a stop. Application of the brakes on the engine caused the slack in the line of cars to run out, and this caused the lead car to stop suddenly, and plaintiff thereupon lost his balance and was thrown or fell from the car.

Appellants state four issues as the questions involved on this appeal, which we will take in order. (1) Was plaintiff engaged in interstate commerce at the time he was injured? The particular movement was a switching operation in making up the “Keddie local”, a freight train running between Keddie and Portola, both in California. As finally made up the train contained an interstate car carrying merchandise in interstate commerce. The parties are in disagreement as to when in these switching operations the “interstate” car was assigned to the train. Witnesses for both sides gave their several versions, and the jury accepted the testimony of those favorable to the employee; the trial court approved the finding in denying defendants' motion for a new trial, and that leaves nothing to be said here as to the nature of the employment at the time of the accident.

(2) Whether the evidence discloses that respondent was thrown by a jerk not reasonably to be anticipated, and without warning and whether he assumed the risk. Fellow employees of the respondent testified concerning the practice and custom in making similar switching operations and all agreed that the sudden application of the brakes made by the engineer would cause such a jerk of the lead car as could not have been anticipated by the respondent, and that no warning of such application was given.

The question of assumption of risk is settled in Devaney v. Atchison, etc., Ry. Co., 219 Cal. 487, 496, 27 P.2d 635, 638, where the Supreme Court held that “the employee does not assume the risk of being thrown off the top of a car by a negligent stop or an unusual stop of the violence indicated by the undisputed physical facts in the present case”. There is no essential difference in the physical facts shown in the present case and those appearing in the Devaney case upon which the foregoing statement was based.

(3) Whether any negligence could be charged to appellant in view of the fact that the engineer did not know of respondent's position on the car. In this connection it is also argued that the trial court erred in refusing an instruction proposed by appellants that no negligence could be imputed to them unless it was shown that the engineer knew respondent was on the car. A sufficient answer to both arguments is that the respondent produced testimony, which the jury must have believed, that the common practice was to place a man on the car to set the brakes when the train came to a stop, and that this practice was known to the engineer and to the entire train crew.

(4) Finally appellants contend that the verdict of $20,000 is excessive. The respondent suffered a broken leg, an injury to the nerve in the left arm, and a stiffening of the ankle. There is nothing in the record which discloses any unusual passion or prejudice on the part of the jury. The defendants represented a large and unpopular corporation, the plaintiff was a young man of twenty-three years who was asking the jury for damages. Under modern decisions such a verdict would not per se support a conclusion that the verdict was the result of that “passion or prejudice” which is referred to in the decisions as necessary to support a modification by this court.

The judgment is affirmed.

NOURSE, Presiding Justice.

I concur: STURTEVANT, J. I concur in the judgment: SPENCE, J.

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