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


Civ. 9527.

Decided: March 29, 1935

Robert Brennan, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, for appellant. Werner, Martin & Hildebrand and James F. Hoey, of Martinez (Thomas F. McCue, of Los Angeles, of counsel), for respondent.

Plaintiff, a brakeman in the employ of the defendant railroad company, brought this action seeking to recover damages for personal injuries sustained when he fell while descending the side ladder of a freight car. A trial was had before the court sitting with a jury and it resulted in a judgment in favor of plaintiff. Defendant appeals from said judgment.

Plaintiff alleged in his complaint that while descending said ladder he encountered an obstruction and that as a proximate result of said obstruction, he was caused to slip and fall. He further alleged that said obstruction consisted of a brace rod running diagonally across the side of the car beneath the ladder, which brace rod “was negligently introduced into and maintained in use and service upon said train of said carrier without notice of warning thereof to plaintiff.” Defendant denied said allegations in its answer and also set forth appropriate allegations for the purpose of interposing the defenses of contributory negligence and assumption of risk. In the opening statement to the jury, counsel for plaintiff stated that the action was brought under both the Federal Employers' Liability Act (45 USCA, § 51 et seq.) and the Federal Safety Appliance Act (45 USCA § 1 et seq.). During the trial defendant introduced testimony showing that thousands of cars of the type in question had been used by defendant since 1929 and that plaintiff had worked upon similar cars on numerous occasions. Further testimony was being offered to show that plaintiff was entirely familiar with the construction of said cars when counsel for plaintiff questioned the materiality of such testimony. A lengthy discussion followed in which counsel for plaintiff abandoned any claim of negligence under the Employers' Liability Act and stated, “I am basing the case squarely and flatly under the provisions of the Safety Appliance Act.” This discussion clarified the issues, as liability for an injury proximately caused by a violation of the Safety Appliance Act is an absolute liability and the question of due care therefore became immaterial. St. Louis, Iron Mountain & S. R. Co. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; St. Louis-Southwestern R. Co. of Texas v. United States (C. C. A.) 29 F.(2d) 568; United States v. Pere Marquette R. Co. (D. C.) 211 F. 220; Roberts Federal Liabilities of Carriers, 2d Ed., vol. 2, p. 1518. Furthermore, the defenses of contributory negligence (45 USCA § 53) and assumption of risk (45 USCA §§ 7 and 54) were no longer available to defendant for any purpose. Thereafter the trial proceeded upon the theory that the action was based solely upon the claimed violation of the Safety Appliance Act (title 45 of USCA, § 11), and the jury was so instructed.

Said section 11 requires that “all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards.” At the time said section was adopted in 1910, the Interstate Commerce Commission was empowered after hearings to “designate the number, dimensions, location and manner of application of the appliances” provided for in said section and the statute provided that “thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this Act,” unless changed by the commission after a full hearing. United States Stats. at Large, 36 Stat. 298, c. 160, § 3. These provisions are still in effect. 45 USCA § 12. Pursuant to the Statute of 1910, the Interstate Commerce Commission held hearings and thereafter made its order of March 13, 1911, which order is set forth in Roberts Federal Liability of Carriers, second edition, volume 2, pages 2010 et seq. The specifications regarding ladders were fully prescribed in said order and we find the following with respect to clearance, “Minimum clearance of treads, two (2), preferably two and one-half (21/212) inches.”

The uncontradicted evidence shows that the ladder in question was constructed in all respects in conformity with the specifications prescribed in the order of the commission. In so far as clearance was concerned, the measurement from the inside of the treads to the diagonal brace rod was at all points in excess of 21/212 inches. Plaintiff nevertheless insisted that the question of whether defendant violated the provisions of said section 11, or in other words the question of whether the ladder was “secure” or was rendered insecure by reason of the proximity of the diagonal brace rod, was a question of fact for the jury regardless of the admitted fact of compliance with the specifications for clearance set by the commission. The trial court adopted this view. The jury was instructed in part that “the word secure means, among other things, safe, not exposed to danger, relief from apprehension of or exposure to danger, to make safe,” and that the question of whether the ladder was secure or insecure rested entirely with the jury. The jury was evidently confused and returned for further instructions during their deliberations. Their questions were directed at the effect of the compliance with the specifications of the commission regarding clearance. The trial court then stated, “The law provides that a secure ladder must be provided. There is no law that covers everything connected with a safe ladder.” Then, after referring to the specification for clearance in the order of the commission, the court said, “but there is nothing in the law or nothing in the Interstate Commerce Act [49 USCA § 1 et seq.] that states that a ladder with a two and one-half inch clearance is safe. * * * The Interstate Commerce Commission provides that rungs shall be so far apart and also that there must be a clearance back of the rungs of two inches, but there is nothing in that law that specifies that a rung that has that clearance is a safe ladder. What is a safe ladder is for you to determine from all the evidence in this case.” In other words, the jury was instructed in effect that the specifications of the Interstate Commerce Commission regarding clearance could be ignored and that the jury could fix its own standard with respect to clearance in determining whether or not the ladder was “secure” within the meaning of the section.

Appellant contends that the evidence was insufficient to sustain the verdict and also contends that the trial court erred in giving and refusing certain instructions. These contentions are closely related and all involve the question of whether a violation of said section 11 requiring “secure ladders” may be predicated solely upon the proximity of a diagonal brace rod beneath the ladder when said ladder and rod are so constructed as to leave the full clearance required by the orders of the Interstate Commerce Commission. In our opinion, it cannot and the contentions of appellant must be sustained. This view finds support in numerous authorities. Atlantic Coast Line R. Co. v. Napier (D. C.) 2 F.(2d) 891; see, also, Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 47 S. Ct. 207, 71 L. Ed. 432; Lancaster & Wright v. Allen, 110 Tex. 213, 217 S. W. 1032; Ford v. New York, N. H. & H. R. Ry. Co. (C. C. A.) 54 F.(2d) 342; Erie R. Co. v. Lindquist, (C. C. A.) 27 F.(2d) 98; Mahutga v. Minneapolis, St. P. & S. S. M. R. Co., 182 Minn. 362, 234 N. W. 474, 476; Pursglove v. Monongahela R. Co., 285 Pa. 27, 131 A. 477; Chicago, R. I. & P. Ry. Co. v. Benson, 352 Ill. 195, 185 N. E. 244; Lehigh & N. E. R. Co. v. Smale (C. C. A.) 19 F.(2d) 67. Respondent cites and relies mainly upon Davis v. Reynolds (C. C. A.) 280 F. 363; Baltimore & O. R. Co. v. Metzler, 82 Ind. App. 246, 143 N. E. 707, and Western & A. R. R. v. Meister, 37 Ga. App. 570, 140 S. E. 905, but these authorities are all distinguishable. Here there was an alleged violation of the Safety Appliance Act rather than of the so-called Boiler Inspection Act (45 USCA § 22 et seq.), which latter act is broader in its scope and differs in its provisions from the Safety Appliance Act. Roberts Federal Liabilities of Carriers, 2d Ed., p. 1246. Furthermore, the only alleged violation of said Safety Appliance Act was in the failure to allow a greater clearance between the ladder and the diagonal brace rod beneath it. Pursuant to the authority vested in it by the Safety Appliance Act, the Interstate Commerce Commission had definitely specified, among other things, the amount of clearance required and said act provided that the specifications prescribed by the commission should be the “standards of equipment” on all cars subject to the provisions of the act. As the uncontradicted evidence showed a full compliance with the standards prescribed by the commission for clearance, there was no evidence to show a violation of the act with respect to clearance, and the jury should not have been permitted to disregard the standards prescribed by the commission and set up a standard of its own. As was said in Mahutga v. Minneapolis, St. P. & S. S. M. R. Co., supra, “A jury cannot be permitted to substitute its judgment in lieu of the judgment of the Commission upon whom the law places the responsibility for such determination.”

In view of the conclusions which we have reached, we deem it unnecessary to discuss in detail the disputed instructions given and refused.

The judgment is reversed.

SPENCE, Justice.

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