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

David Henry DAVEE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.*

Civ. 19534.

Decided: March 19, 1962

McCarthy & Crow, Sacramento, Cornish & Cornish, by Francis T. Cornish, Berkeley, for appellant. G. Blandin Colburn, Jr., Dunne, Dunne & Phelps, San Francisco, for respondent.

Plaintiff David Henry Davee, a carpenter employed by defendant Southern Pacific Company, brought this action under the Federal Employers' Liability Act for injuries sustained during the course of his employment.

On January 7, 1958, plaintiff was engaged in repairing a railroad bridge near Biggs, California, when he fell from a concrete pier approximately five feet above the ground and sustained injuries to his back and neck. Defendant's liability was predicated upon the alleged ground that it had negligently failed to provide any scaffolding or staging upon which the workers could stand and had further allowed mud, rock and gravel to accumulate on the surface of the pier.

After a trial by jury, verdict and judgment were for defendant. Plaintiff appeals therefrom.

Appellant's sole contention is that the trial court erred in refusing to admit into evidence or to instruct upon a construction safety order of the Division of Industrial Safety of the State of California. The order in question, section 1640, subdivision (a) (8 Cal.Adm.Code) sets forth the requirement that scaffolding be provided for work which cannot otherwise safely be performed.1 Appellant offered the section into evidence near the conclusion of his case, and the admission into evidence was denied. In addition to offering the order into evidence, appellant requested that the court take judicial notice of the section and instruct the jury as follows: ‘You are instructed that § 1640 [subdivision (a)] of the Division of Industrial Safety, Construction Safety Order, provides as follows: ‘Scaffolds shall be provided for all work that cannot be done safely by workmen standing on permanent or solid construction, except where such work can be safely done from ladders.’ The foregoing requirement was an obligation placed upon plaintiff's employer, SOUTHERN PACIFIC COMPANY.'

The trial court took judicial notice of the order, but refused the instruction, relying on the case of Robins Dry Dock & Repair Co. v. Dahl (1925), 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, a New York case, in which the action was based upon a maritime tort wherein the jurors were instructed that they might consider the provisions of a New York statute requiring employers to furnish their employees with safe scaffolding. The United States Supreme Court reversed the judgment for plaintiff employee on the ground that the trial court had committed material error by allowing the jury to consider the provisions of the local law in determining whether or not the employer was negligent.

We are in accord with the trial court's conclusion that the Robins decision was controlling in the present cause. Although it is true that the Robins case involved rights and liabilities arising under maritime law, it has been repeatedly held that the substantive law of the states is equally inapplicable to suits based upon the Federal Employers' Liability Act.

In Chicago, M. & St. P. Ry. v. Coogan (1926) 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041, the court reversed a Minnesota state decision, 160 Minn. 411, 200 N.W. 477, upholding a judgment in favor of the administratrix of a brakeman who had been killed in a railroad accident. Although the state court had concluded that the evidence was sufficient to sustain a finding that the railroad had been negligent, the Supreme Court overruled this determination, after pointing out that state substantive laws had no bearing on the type or degree of negligence required under the federal act. The court stated, at page 474, 46 S.Ct. at page 565: ‘By the federal Employers' Liability Act, Congress took possession of the field of employers' liability to employees in interstate transportation by rail, and all state laws upon that subject were superseded. [Citations.] The rights and obligations of the petitioner depend upon that act and applicable principles of common law as interpreted by the federal courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act and proof of such negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject to the control of the several states.’ Similarly, in Urie v. Thompson (1949), 337 U.S. 163, at page 174, 69 S.Ct. 1018, at page 1027, 93 L.Ed. 1282, the court characterized the Federal Employers' Liability Act in the following language: ‘What constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs.’

Appellant himself concedes that the act sets a uniform rule for the determination of liability and ‘that the effect of the act is to divest the States of jurisdiction to legislate with respect to that liability.’ Appellant maintains, however, that state rules and regulations are still applicable in some situations arising under the act. Appellant relies on the general principle set forth in Central Vermont Ry. Co. v. White (1915), 238 U.S. 507, 511, 35 S.Ct. 865, 59 L.Ed. 1433, that matters relating to the remedy—such as the form of the action, sufficiency of the pleading, rules of evidence, and the statute of limitations—depend upon the law of the state where the suit is brought. As the court went on to point out, however, ‘matters of substance and procedure must not be confounded because they happen to have the same name.’ Thus a state rule altering the burden of proof is far more than a mere technical rule of evidence and may not be applied in contravention of the federal act.

In the case at bar, it cannot seriously be contended that the admission of the safety order in question would have left the substantive rights of the parties unaltered. Instructing on the safety order would have apprised the jurors that respondent was under an affirmative duty to provide scaffolds in all cases where the work could not be performed safely by workmen standing on permanent construction. (See Lehmann v. Los Angeles City Board of Education (1957) 154 Cal.App.2d 256, 316 P.2d 55.) Indeed, we see no reason for the appellant offering the order into evidence if not for the purpose of altering the substantive rights of the parties. We need only point to the concluding statement of the instruction: ‘The foregoing requirement was an obligation placed upon plaintiff's employer * * *.’ Under these circumstances, appellant cannot contend that the admission of the order into evidence would have constituted no more than an application of state procedural rules.

Appellant next asserts that the order was admissible as evidence of railroad rules and of custom and usage in the railroad industry. This contention fails for two reasons. First, the safety order in question is clearly not a railroad rule. There is no indication in the record whatever that the order in question was a general rule followed by railroads throughout the country, nor that it was even a part of respondent's rules. Secondly, appellant did not offer or produce any evidence whatever as to any custom and usage that interstate carriers operating within the boundaries of different states generally attempt to comply with varying local regulations.

Further, appellant's argument fails because the record shows that the trial court in no way interfered with the presentation of all proper evidence of railroad rules or customs. Appellant's counsel, while examining appellant, asked whether there was a custom and practice of using scaffolding or staging in work of this nature. The answer was that there was such a custom, and that scaffolding had generally been used in order bridge repair jobs. Davee was also allowed to testified that there was scaffolding material available at the site, but that it was up to the foreman to decide whether it would be used. Subsequently, appellant's counsel examined the foreman of the job, and inquired as to the existence of any Southern Pacific rule or custom regarding the use of scaffolding and he stated that it was the company's general rule to use scaffolding at all heights above six feet and that below that scaffolding was used only when absolutely necessary. Under these circumstances, it would seem clear that the trial court allowed appellant to prove custom and rules in the proper manner and correctly concluded that the California safety order was in no way relevant to these issues.

Appellant's final contention is that the safety order ought to have been admitted into evidence even if it be conceded that the effect of such admission would be to alter the substantive rights of the parties. Appellant maintains that the courts have in actual practice determined negligence in accordance with state regulations despite frequent statements to the contrary in such cases as Chicago, M. & St. P. Ry. v. Coogan, supra, and Urie v. Thompson, supra. In support of this position, appellant relies upon Frese v. Chicago, B. & Q. R. Co. (1923), 263 U.S. 1, 44 S.Ct. 1, 68 L.Ed. 131. In the Frese case, the plaintiff brought a Federal Employers' Liability Act suit in a Missouri state court to recover damages for the death of her intestate, an engineer for defendant railroad. The judgment for plaintiff was reversed by the Missouri Supreme Court 290 Mo. 501, 235 S.W. 97 on the ground that plaintiff's deceased was guilty of negligence as a matter of law under an Illinois statute requiring all engineers to stop their trains within 800 feet of a crossing with another railroad and ‘positively ascertain’ that the way was clear before proceeding through the crossing. Since the decedent had been killed when two trains stopped at a crossing, started up again, and then collided, the Missouri Supreme Court concluded that the decedent's failure to ‘positively ascertain’ that the way was clear before starting up his train constituted negligence as a matter of law. This decision was affirmed by the United States Supreme Court in a concise two-page opinion written by Mr. Justice Holmes. The court held that the state statute made it the ‘personal duty’ of the deceased to ascertain that the train could safely resume its course. The deceased could not escape this duty ‘and it would be a perversion of the Employers' Liability Act * * * to hold that he could recover for an injury primarily due to his failure to act as required * * *. There is no doubt that the statute of Illinois applied to this case.’ (Pp. 3–4, 44 S.Ct. p. 2.)

In a subsequent Supreme Court decision, which was also delivered by Mr. Justice Holmes, the court again indicated that state substantive laws might sometimes be applicable in Federal Employer's Liability Act actions. In Atlantic Coast Line R. Co. v. Powe (1931), 283 U.S. 401, 51 S.Ct. 498, 75 L.Ed. 1142, the plaintiff recovered damages in a state court for the death of a switchman who had been killed while he was hanging on the outside of a moving car and was brought into contract with a semaphore near the tracks. A safety order of the state railroad commission provided that no structure could be allowed within four feet of the outer edge of the track. Defendant railroad had complied with this order by placing its semaphore four feet, ten inches from the track. The United States Supreme Court reversed the judgment for plaintiff on the ground that defendant had been guilty of no negligence as a matter of law. In so holding, the court noted that the defendant had placed its semaphore more than four feet from the track and was thus warranted in believing that it had done its duty as far as the commission was concerned. Since there was nothing to show that defendant could have made the position safer than it was except by moving the track, the court concluded that there was no showing of negligence on defendant's part.

These two decisions lend merit to appellant's contention that state laws may, under certain circumstances, affect substantive rights and duties under the federal act. In the Frese case, it is true that the facts were such as to compel the conclusion that plaintiff's decedent was guilty of negligence under any standard. Nevertheless, certain language used by the court does indicate that the state statute was the controlling criterion of what acts would constitute due care on the part of an engineer approaching a crossing with another railroad. The Powe case, although weaker authority in support of appellant's position, at least shows that defendant railroad's act of complying with the order of the state railroad commission was evidence which could properly be considered in resolving the issue of negligence.

The sole question remaining is whether the instant case falls within the purview of these two decisions or whether it should be decided in accordance with the general rule that local laws can have no bearing on the kind or amount of negligence required under the federal act. It may be here noted that the Frese and Powe cases themselves set forth no generalized statement defining the circumstances under which state laws may be admitted into evidence. In Chesapeake & O. R. Co. v. Stapleton (1929) 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861, however, the Supreme Court distinguished the Frese case and thus shed a limited amount of light on the problem. The Stapleton case involved the question of whether a state court had properly allowed the jury to consider a state statute in determining whether defendant railroad was guilty of negligence under the Federal Employers' Liability Act. The statute in question provided that no child under the age of 16 should be employed to work upon any railroad, and the jury was instructed to find in favor of the plaintiff if they found that he was employed by defendant and under 16 at the time he was injured. The United States Supreme Court reversed the judgment for plaintiff on the ground that the state statute had no bearing on the liability of defendant under the federal act. In so holding, the court distinguished the Frese case in the following language: ‘In that case a state statute made it the duty of a locomotive engineer to stop his train within a certain distance of a crossing of another railroad and positively to ascertain that the way was clear and that the train could safety resume its course before proceeding to pass the crossing. The duty was a personal one, which could not be devolved by custom upon the fireman, and it was held that the failure of the engineer to comply with the duty was a defense to an action for his resulting death, brought by his administratrix under the Federal Employer's Liability Act. This was a crossing of two railroads, a crossing where appropriate precautions must be taken to avoid collision between railroad trains, whether state or interstate. It was a situation dependent for public safety on the enforcement of the state law as against the employees of all railroads, state or interstate. The application of the state statute was not by way of enlargement or contraction of the Federal Employers' Liability Act. See Salabrin v. Ann Arbor R. Co. 194 Mich. 458, 160 N.W. 552; Pennsylvania Co. v. Stalker, 67 Ind.App. 329, 119 N.E. 163.’ (Pp. 596–597, 49 S.Ct. p. 445.) The court thus indicated that the statute in the Frese case fell within an area which was not preempted by the federal act. Since there was evidently no controlling federal case law nor any generally accepted railroad rule governing the procedure to be followed at such a crossing, and since there was obviously a great need for some applicable rule of the road, the court accepted the Illinois statute as a reasonable solution to the problem. Whether the Powe decision may also be explained on this theory is debatable, but no subsequent Supreme Court opinion appears to have commented upon that case.

In any event, the instant case does not appear to present a situation where state law should be allowed to apply. Appellant's safety order does not operate in such a manner as to fill gaps in the federal decisional law or to provide a needed rule to govern such specific situations as the location of a semaphore or the conduct to be followed when approaching a crossing. To the contrary, appellant's safety order is an attempt to legislate upon the general concept of negligence in regard to the working conditions of employees. The question of whether or not an interstate carrier should provide scaffolding for its workers would appear to be an issue on which applicable railroad customs and federal case law should control. Furthermore, the case of Robins Dry Dock Co. v. Dahl, supra, dealt with an almost identical statute and held that a state court had committed reversible error in allowing it to be considered by the jury. Although the Robins case, as above noted, was brought under the federal maritime law, the courts appear never to have made any distinction on this basis as to the applicability of state laws. It may be noted, in fact, that two of the three cases cited by the Robins court in support of its holding were Federal Employers' Liability Act actions, rather than maritime suits. See Robins Dry Dock & Repair Co. v. Dahl, supra, 266 U.S. at p. 457, 45 S.Ct. 157, where the court cited Central Vermont R. Co. v. White (1915), 238 U.S. 507, 511, 35 S.Ct. 865, 59 L.Ed. 1433, and New Orleans & N. E. R. Co. v. Harris (1918), 247 U.S. 367, 371, 38 S.Ct. 535, 62 L.Ed. 1167.

Under these circumstances, appellant has not brought himself within the exception of the Frese and Powe cases.

Judgment affirmed.


1.  The Division of Industrial Safety derived its power to enact the safety order in question from section 6500 of the Labor Code. There appears to be no doubt that such an order, when enacted pursuant to a legislative delegation of power, has the full force and effect of the law. (See 2 Cal.Jur.2d Administrative Law, § 71, pp. 143, 144.) The United States Supreme Court has, in fact, construed the term ‘statute of any state’ to include such an order. (Hamilton v. Regents of University of Cal. (1934), 293 U.S. 245, 257–258, 55 S.Ct. 197, 79 L.Ed. 343.)


KAUFMAN, P. J., and AGEE, J., concur.

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