SHOWALTER v. WESTERN PAC CO (1939)

Plaintiff, as administratrix of the estate of Joseph W. Showalter, deceased, sought damages for the death of said deceased. Upon a trial by jury, plaintiff had judgment. Defendant appeals from said judgment and from the order denying its motion for judgment notwithstanding the verdict.

Plaintiff's complaint was in two counts. These counts sought respectively to charge defendant with liability under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. It was alleged in the complaint and admitted by the answer that deceased was a brakeman in the employ of the defendant; that both deceased and defendant were engaged in interstate commerce at the time of the accident; that it was the duty of deceased at about 9 o'clock p.m. on the night in question to ride upon two freight cars in a switching operation at defendant's yard at Keddie, in which switching operation said cars were being dropped by the engine onto a track known as lower four in said yard; and that in said switching operation, deceased received injuries which resulted in his death. It was alleged in the first count and denied by the answer that defendant “carelessly operated and controlled said cars” thereby causing said injuries and death. Plaintiff was permitted during the trial to amend by adding the words “and engine”. It was alleged in the second count and denied by the answer that the hand-brake on one of said cars was defective and that as a result of its defective condition said hand-brake “suddenly and unexpectedly released and let go” thereby throwing deceased upon the tracks and causing said injuries and death. The answer affirmatively alleged that the negligence of the deceased was the sole proximate cause of his death; that deceased was guilty of contributory negligence; and that deceased assumed the risk.

At the close of plaintiff's case, defendant made a motion for nonsuit with respect to the second count. Said motion was granted, as there was no evidence whatever of any violation of the Safety Appliance Act. Defendant also made a motion for nonsuit with respect to the first count. Before this motion was ruled upon, defendant withdrew it and made a motion for a directed verdict. Said motion was denied and the cause was thereupon submitted to the jury upon the evidence introduced by plaintiff. The jury returned its verdict in favor of plaintiff and judgment was entered thereon. Thereafter defendant made a motion for judgment notwithstanding the verdict upon the ground that the trial court should have directed a verdict in favor of defendant. Said motion was denied and this appeal followed.

The main contentions of defendant on this appeal are that the evidence was insufficient to sustain the verdict and that the trial court therefore erred in denying defendant's motion for a directed verdict and in denying defendant's motion for judgment notwithstanding the verdict. Our review of the record convinces us that these contentions must be sustained.

Before proceeding to a consideration of the evidence found in the record before us, it appears appropriate to make certain observations which are pertinent in the discussion of the sufficiency of the evidence to support a verdict under the Federal Employers' Liability Act. Said act does not impose liability upon the carrier regardless of fault as do many state acts providing for so-called workmen's compensation rather than damages. On the contrary, the act provides that the carrier “shall be liable in damages * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence”, in its equipment or appliances. U.S.C.A., title 45, § 51. It thus appears that the basis of liability under said act is negligence upon the part of the carrier and it is settled by the authorities hereinafter cited, that the burden of proving such negligence rests with the plaintiff in any action brought under said act. While an action may be brought under the act in either a federal or state court, U.S.C.A., title 45, § 56, the substantive rights of the parties are governed by the act as interpreted by the federal courts. Chicago M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. When such action is brought in a state court, the law of such state may be applied to procedural matters, but the question of the sufficiency of the evidence to support a verdict is one of substantive law and is not a question which is subject to the control of the state in which the action is brought. As was said in Chicago M. & St. P.R. Co. v. Coogan, supra, 271 U.S. at page 474, 46 S.Ct. at page 565, 70 L.Ed. 1041, “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. [[[[[Citing cases.] 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. This court will examine the record, and if it is found that, as a matter of law, the evidence is not sufficient * judgment against the carrier will be reversed. [Citing cases.]” See, also, New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Yazoo & M.V.R. Co. v. Mullins, 249 U.S. 531, 39 S.Ct. 368, 63 L.Ed. 754; Chesapeake & O.R. Co. v. Stapelton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861.

It is clear under the federal decisions that the so-called scintilla of evidence rule is rejected and that substantial evidence must be produced by the plaintiff in order to sustain the burden of proof. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Small Company v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Southern Railway Company v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Chicago G.W.R. Co. v. Rambo, 298 U.S. 99, 56 S.Ct. 693, 80 L.Ed. 1066. Such evidence may be either direct or circumstantial but there must be substantial evidence, direct or circumstantial, to show that negligence on the part of the carrier was the proximate cause or one of the proximate causes of the accident. Evidence which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient. Pennsylvania R. Co. v. Chamberlain, supra; Chicago M. & St. P.R. Co. v. Coogan, supra; Atchison, T. & S.F.R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896; Northern R. Co. v. Page, 274 U.S. 65, 47 S.Ct. 491, 71 L.Ed. 929; Atchison, T. & S.F.R. Co. v. Saxon, 284 U.S. 458, 52 S.Ct. 229, 76 L.Ed. 397; St. Louis S.F.R. Co. v. Mills, 271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979; Kansas City So. Ry. Co. v. Jones, 276 U.S. 303, 48 S.Ct. 308, 72 L.Ed. 583.

It is conceded in the present case that the verdict must find support, if it does find support, in evidence which was circumstantial in nature. So far as the record discloses, there was no eye witness to the accident and there was no testimony showing just how and when the accident occurred. Three other employees of defendant were engaged in the switching operation in question, namely another brakeman, the engineer and the fireman. Plaintiff did not call the engineer or fireman, but relied upon the testimony of Parrott, the brakeman. There is no conflict in the evidence as the cause was submitted at the close of plaintiff's case and it therefore becomes necessary to examine the testimony of Parrott in some detail. The following facts are either admitted facts or are facts to which Parrott testified.

The Keddie yard is adjacent to the main line track and runs in a general easterly and westerly direction. It consists of four tracks which parallel the main line track. The grade there is a one per cent grade descending from east to west. A series of tracks and switches makes it possible to operate trains from the main line onto any of said four tracks, which are numbered from one to four from south to north, or to operate trains from any one of said four tracks onto any other of said four tracks. This series of tracks is known as a snake-lead, perhaps because of the figure which it makes in curving away from each track and straightening out at the next track as it progresses from a point on the main line track toward the east end of the yard over each of said numbered tracks to a point on track four toward the west end of the yard. In the photograph, the snake-lead appears as a continuous track pursuing a wriggling course in making the cross-over of the yard. The portion of each track to the east of the snake-lead is designated as “upper” while the portion to the west is designated as “lower”.

The particular switching operation in which the crew was engaged was one involving three cars and the engine. Shortly prior to the accident, the engine stood on lower one coupled to these three cars. The order of the cars and engine from east to west was as follows: the water car, the gondola car, the refrigerator car and the engine. The pilot of the engine was headed east. In railroad parlance, a gondola car is referred to as a “gon” and a refrigerator car is referred to as a “reefer”. The object of the switching operation was to place the gon and the reefer on lower four coupled to a cut of twelve cars which were then located on lower four; and to place the water car on upper four. The method to be pursued in accomplishing this object was as follows: The engine was first to push the three cars to upper one so that the entire unit would be clear of the switch located on track one; the water car was then to be uncoupled and left standing on upper one; the engine was then to give the reefer and gon a slight start and then uncouple and run back onto lower one; the switch to the snake-lead was to be thrown as soon as the engine crossed said switch and the reefer and gon were to be permitted to roll down across the snake-lead to a coupling with the twelve cars located on lower four; the switch on track one was then to be lined so that the engine could proceed from lower one to upper one and couple onto the water car; the switch on track one was then to be thrown again so that the engine and water car could proceed down the snake-lead to lower four from which point the engine was to push the water car into upper four. The cars were all approximately forty feet in length. It was apparently known to all members of the crew that the easterly end of the cut of twelve cars, standing on lower four, was approximately one hundred feet west of the switch on track four at the end of the snake-lead. With the reefer and the gon added thereto, there would remain only approximately twenty feet between the easterly end of the gon and said switch, which would obviously leave insufficient space for the engine and water car to enter lower four before entering upper four without first coupling to the fourteen cars, including the original twelve and the reefer and gon, and pushing them a short distance down lower four.

The deceased was the senior man of the crew and was in charge of this switching operation. He assigned Parrott to handle the switch on track one and to remain with the engine and water car during the balance of their movement. Deceased was to uncouple the engine from the reefer and gon after the engine had given them a rolling start on upper one and was then to ride said cars across the snake-lead and to a coupling with the twelve cars on lower four. The night was dark and it appears that the movement was intended to be and was carried out at a slow speed of perhaps two or three miles per hour. The deceased had to roll down with the two cars “feeling his way” as did Parrott with the engine and water car, the pilot of the engine and its headlight being pointed away from the direction of the movement down the snake-lead to track four.

The first part of the movement was carried out without any unexpected happening. The deceased uncoupled the reefer and the gon from the engine on track one and climbed to top of the reefer, which was the first of the two cars, as said two cars rolled slowly by the switch on track one and onto the snake-lead for the purpose of rolling over the snake-lead and coupling with the cars on lower four. The duty of deceased was to control said cars by means of the hand-brake and to bring them to a normal coupling. He was last seen before the accident on top of the reefer at the west end thereof as the two cars passed Parrott who was standing at the switch on track one. Said cars rolled by and the balance of the crew proceeded with their duties in completing the switching operation.

Parrott then lined the switch on track one so that the engine could again proceed from lower one to upper one. The engine did so proceed and he rode the engine pilot to the place the water car was standing on upper one and coupled the water car to the pilot of the engine. He then went back to the switch on track one and threw said switch so as to permit the engine to proceed from upper one across the snake-lead to lower four. After throwing the switch, Parrott got on the footboard at the end of the tender, which was in front of the engine, at the left side or engineer's side which was his proper position. The engine then proceeded by backing slowly over the snake-lead. Parrott did not see the light of the deceased and there was nothing to prevent him from seeing it if it had been on the top of the cars. While the engine was still backing and when the front of the tender upon which Parrott was riding had arrived at a point in the vicinity of the switch on track four, Parrott first heard the deceased holler. It was “a holler as if someone were in pain or distress in some way”. If deceased had been hollering before that time, Parrott did not believe he could have heard him “because the engine was rolling, and because of the distance I was from him.” Parrott ran over to the north side of the gon and found deceased lying across the north rail of track four underneath the gon, possibly halfway between the trucks of the gon. The reefer and the gon had already rolled down to a coupling with the twelve cars on lower four. Deceased's head was toward the north and his feet were toward the inside of the track. He had been run over and while he was still conscious and spoke to Parrott when Parrott arrived, he died shortly thereafter as a result of his injuries.

The remaining testimony throws but little light on the manner of the happening of the accident. Parrott was qualified as an expert and gave certain testimony regarding the proper and customary manner of riding cars under the circumstances which deceased rode the two cars. He testified that the proper place for a man to ride under the circumstances was on top of the reefer, the leading car, near the brake which was at the west end of said reefer. It is assumed by the parties, however, from other evidence that deceased fell to the ground between the east end of the reefer and the west end of the gon. This assumption seems to be made because apparently only the westerly trucks of the gon ran over the deceased; his light was found between the rails near his feet; there were certain marks found along the east end of the reefer; and on the following morning deceased's brake club was found by Parrott in the grab-iron at the west end of the gon. While it appears that the movement could have been controlled from the brake platform of the gon, which was the second car, Parrott testified that “a man could not very easily see where he was going if he stood on the brake platform of the gondola”. He further testified, “I do not know of anything that would make it advisable to do so. I do not know of any reason at all why he should have done so.”

It seems to be plaintiff's theory that the two cars on which deceased was riding had either stopped or were still rolling at a point where the west end of the reefer was about half a car length from the east end of the twelve cars on track four and that the engine then struck the east end of the gon and caused the deceased to be thrown to the ground between said cars. This would furnish a possible explanation of the accident if there were any evidence to support it, but we find none. There was no evidence of any contact whatever between the engine and the gon nor was there any evidence to show that the reefer and gon had not rolled to their intended coupling with the twelve cars prior to the time that the engine arrived at a point near the switch on track four. As above stated, plaintiff called only one witness to testify regarding the events occurring on the evening of the accident. That witness was Parrott who rode the end of the tender and was in a position to know if any contact had been made. He did not testify that any such contact had been made. Under repeated questioning the most that he would say was that he could not remember. His other evidence indicates that there was no such contact. Realizing that it was essential under the circumstances to establish such contact in order to sustain the verdict herein, plaintiff takes the position that the jury was entitled to accept portions of Parrott's testimony and to disregard others. But if the jury was entitled to disregard portions of Parrott's testimony, even though he was uncontradicted and unimpeached, the result is that there is no other evidence remaining to sustain plaintiff's theory.

We find some discussion in the briefs of the probabilities but if it be assumed that the jury was entitled to deal in probabilities in arriving at its verdict, the weight of the probabilities was not in accord with plaintiff's theory or any theory which would sustain the verdict. On the contrary, it appears more probable that deceased sustained his fatal injuries by falling from the cars to the ground prior to the time that the engine arrived near the switch at track four and without causal negligence on the part of the defendant. At best, the evidence left the determination of the cause and manner of happening of the accident in the realm of mere speculation and conjecture and under these circumstances, it must be held that plaintiff failed to sustain the burden of proof. As was said in Atchison, T. & S.F. Ry. Co. v. Saxon, supra, 284 U.S. at page 460, 52 S.Ct. at page 230, 76 L.Ed. 397, “What occasioned this distressing accident can only be surmised. It was necessary to show causal negligence in order to establish the respondent's right to recover. The evidence fails to meet this requirement.” And again in New York Central R. Co. v. Ambrose, 280 U.S. 486, it is said at page 490, 50 S.Ct. 198, at page 199, 74 L.Ed. 562, “The utmost that can be said is that the accident may have resulted from any one of several causes, for some of which the company was responsible, and for some of which it was not. This is not enough.”

Both parties have called to our attention numerous other authorities presenting varying factual situations. We find none precisely in point and it is conceded that each case must stand upon its own particular facts. We therefore refrain from discussing these numerous authorities as the rules appear to be well settled. It is simply a question of applying settled rules to the evidence presented in the record before us.

One other item of evidence should be mentioned. Over the objection of defendant, there was admitted in evidence a conversation had by Parrott with the deceased after the accident had happened and after Parrott had found the deceased in the position above indicated. Said conversation was admitted upon the theory that it was part of the res gestae. It appears unnecessary to discuss the doubtful probative value, if competent, of the rather ambiguous statement made by the deceased. It was introduced by plaintiff upon the theory that it had some value as a purported narrative concerning the happening of the accident, but it is clear that it was inadmissible and incompetent. Such evidence has been consistently held to be inadmissible and incompetent in this state ever since the early case of People v. Ah Lee, 60 Cal. 85. See Durkee v. Central Pacific R. Co., 69 Cal. 533, 11 P. 130, 58 Am.Rep. 562; People v. Wong Ark, 96 Cal. 125, 30 P. 1115; Williams v. Southern Pacific Company, 133 Cal. 550, 65 P. 1100; Murphy v. Board of Police etc. Com'rs, 2 Cal.App. 468, 83 P. 577; People v. Murphy, 28 Cal.App. 708, 153 P. 732; Salvo v. Market Street Ry. Co., 116 Cal.App. 339, 2 P.2d 585. As was said in Williams v. Southern Pacific Company, supra, 133 Cal. at page 554, 65 P. at page 1102, “Expressions of persons who are actors, made during the occurrence, may generally, but not always, be proved. If spontaneous and caused by the event, they may nearly always be shown. But if afterwards, no matter how shortly afterwards, there is an attempt to explain what has happened, or to account for it, or to defend one's self, or the like, it is incompetent and inadmissible as res gestae.” Plaintiff urges a contrary rule which prevails in some jurisdictions, but the law of this state governs the admissibility of evidence in actions brought in the courts of this state under the Federal Employers' Liability Act. Goulette's Adm'r v. Grand Trunk Ry. Co., 93 Vt. 266, 107 A. 118. We therefore conclude that evidence of said conversation was erroneously admitted over the objection of defendant and that it may not be considered for any purpose.

In conclusion, we may state that while the evidence showed the nature of switching operation, the duties assumed by the deceased and the approximate time and place of the accident, said evidence left the cause of the accident veiled in mystery. As above stated, it was incumbent upon plaintiff to show that negligence on the part of defendant caused said accident. Plaintiff could not rely solely upon the presumption of due care on the part of the deceased for there was likewise a presumption of due care on the part of the defendant. Looney v. Metropolitan R. Co., 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564. Plaintiff produced no substantial evidence to meet the burden thus imposed, and the determination of the essential facts was left in the realm of mere speculation and conjecture. Perhaps the verdict was returned because of the feeling upon the part of the jurors that it is the policy of the law of this state to award compensation to injured employees and the dependents of deceased injured employees regardless of fault on the part of such employees or their employers. But this policy has not been adopted by congress with respect to employees, such as the deceased, as to whom Federal Employers' Liability Act applies. On the contrary, the policy adopted by congress, as expressed in said act, is to impose liability upon the carrier only upon a showing that fault on the part of the carrier caused the injuries. There are those who believe that congress should change that policy and provide for liability on the part of the carrier regardless of fault but until that policy is thus changed, the state courts and juries must be guided by the terms of the act and the interpretation thereof by our federal courts.

From what has been said, it follows that the trial court erred in denying defendant's motion for a directed verdict and in thereafter denying defendant's motion for judgment notwithstanding the verdict.

The judgment and the order appealed from are reversed with directions to the trial court to grant defendant's motion for judgment notwithstanding the verdict.

SPENCE, Justice.

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