GRAY v. SOUTHERN PAC CO (1943)

Mary Ellen Gray, the widow of Pierce L. Gray, deceased, as administratrix of his estate, brought suit under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51–59, for damages against the Southern Pacific Company for the death of her husband, alleged to have been caused by negligently stopping a train without warning, by the sudden application of air brakes, from the violent jarring of which train he was thrown from the top of a box car where he was engaged in the performance of his duties as a brakeman, run over by the train and killed. A verdict of $15,000 was returned by a jury in favor of the plaintiff. On motion of the defendant, under section 629 of the Code of Civil Procedure, a judgment notwithstanding the verdict was rendered in favor of the railroad company. From that judgment this appeal was perfected.

The plaintiff alleged and relied upon one negligent act only as the cause of the accident which resulted in the death of her husband. That charge is contained in the third paragraph of the amended complaint. It reads in part: “While said Pierce L. Gray, deceased, was on the top of one of the freight cars in said freight train, in the course of his employment, the said defendant, its agents, officers, servants and employees so negligently operated said freight train as to cause it to and it did, without warning to said Pierce L. Gray, deceased, come to a sudden, violent, unusual, unnecessary and unexpected stop, and which said stop caused such a sudden, violent, and unexpected jolt or jar as to throw said Pierce L. Gray, deceased, from the top of said freight car to the tracks and ground below, thereby causing said Pierce L. Gray to be and he was run over by said freight train, decapitating said Pierce L. Gray, resulting in his death.”

The defendant owns tracks, engines, rolling stock and equipment with which its interstate railroad business is conducted. The main track extends from Oakland by way of Sacramento, Roseville and Colfax over the Sierra Nevada to Sparks, Nevada, and thence East. On the night of April 10, 1934, the defendant was conveying a train, consisting of sixty–two freight cars, two engines and a caboose, easterly over the last–mentioned track. Attached to the head of the train was a large Mallet locomotive. A special helping engine was also cut into the train at a point four cars ahead of the caboose, which occupied the rear end. This special engine was supplied to assist in shoving the train over the steep mountain grades. Each car was 44 1/2 feet in length. The entire train, including the two engines and the caboose, was 3,032 feet in length. The train crew consisted of the two engineers and their firemen, together with the conductor and four brakemen.

Colfax is a station situated in the foothills northeasterly from Auburn. The train reached Colfax about ten o'clock at night. It was then dark. The head engine stopped a few feet beyond the depot and other station buildings. Pierce L. Gray, who was employed as the front brakeman on that train, was an able bodied, experienced and efficient brakeman forty–one years of age. He had worked for the company many years. He was familiar with the tracks and yard at Colfax, having formerly made numerous runs through that station over the mountains, and having previously lived in that city for several years. As soon as the train stopped at Colfax, Mr. Gray alighted from the tender and uncoupled the engine, which ran forward about a hundred feet to a water tank where its boiler was filled. After that task was completed the engine returned and was again coupled to the front car. Mr. Gray then went to the telegraph office in the depot near by, to get the clearance order for the engineer. After receiving that order, Gray asked the operator to lend him a lantern. He said he had lost his lantern somewhere between Roseville and Colfax. The operator furnished him with a lantern, which a watchman by the name of Ragsdale testified he saw him light “right on the counter.” He said he “took it out with him, as he left.” Mr. Gray then went to the Mervin Inn, which was about a hundred feet distant, to get a cup of coffee or a luncheon.

When the train stopped at Colfax, George A. Lytle, the conductor, came forward from the caboose where he had been riding, and entered the depot to obtain his clearance order and to make his report and attend to other official duties. He did not remember whether he received his clearance order or not. Suddenly the train started to proceed from the station, without the usual signal from the conductor. Mr. Lytle ran out and prepared to board the train. He said that he did not then see Mr. Gray. He claimed, however, to have seen Fred Hatch, a special brakeman on that run, standing near the track at a distance of about two carlengths to his right, toward the front engine, inspecting the cars. The engine was then about six carlengths beyond the point where Mr. Lytle stood. The train was slowly moving forward. Mr. Hatch testified that he inspected the entire train as it rolled out of Colfax that night. When the caboose reached the point where he stood east of the depot, he boarded that car. He said the train never ran at a speed faster than eight miles per hour as it left Colfax, and that it gradually slowed down before the caboose reached him. After he boarded the caboose, the train continued to move forward only three or four carlengths when it came to a full stop. It follows that the train traveled only its entire length of about 3,000 feet, from the time it started to leave Colfax until it came to a full stop. That fact is corroborated by other witnesses, and is not contradicted. The track runs in a northeasterly direction from Colfax on a slightly ascending grade.

Both Mr. Charles Smethurst, the engineer, and Mr. Fred Wolf, the fireman on the foremost locomotive, testified that they saw Mr. Gray run from the Mervin Inn after the train started to leave the station. Neither of them testified that he was carrying the borrowed lantern. Possibly he left in such haste that he forgot to carry it with him. It was not thereafter found. The engineer testified that he watched Gray board the first or the second car from the engine, saw him climb the ladder and appear on top of the car. He said that he did not observe that he carried a lantern. The engineer said that he expected Mr. Gray to come forward immediately to ride in the cab, as was his usual custom, but that he failed to appear. After the train had run a distance of about its full length from the station, and Gray failed to appear, the engineer became anxious about him, and after talking with the fireman about his absence, the air brakes were applied to stop the train. The engineer and fireman testified positively that the train did not run more than five or six carlengths, which would be from 250 to 267 feet, after the air brakes were applied, before it came to a full stop. There is evidence that it was an “unusual stop.” It was admitted no whistle was sounded before the air brakes were applied. Rule 14a of the company's regulations, which was received in evidence, provides that one blast of the whistle shall be given before an unusual stopping of the train.

There may be said to be a conflict of evidence as to whether the application of the air brakes caused the train to stop with a violent jolt or jar of the cars. Mr. Purl Wait testified that would be the inevitable result of a sudden application of the air brakes under such circumstances. On the contrary, each member of the crew testified that the train came to a gradual and easy stop, and that there was no perceptible or unusual jolt or jar of the cars.

There is also a sharp conflict as to whether it was the duty of Mr. Gray as head brakeman to inspect the cars for flat wheels, hot boxes, set brakes or mechanical defects as the train left Colfax or any other station where it had stopped. Mr. Purl Wait, who worked for the defendant company for many years until 1930, testified, over objection, that it was the uniform rule and custom of the company as a train left a station to require the head brakeman on a long train of fifty or sixty cars, to inspect at least the foremost half of the train, and to then mount the cars and hold himself in readiness to transmit to the engineer any signals which were given or required. The defendant moved to strike that evidence from the record on the ground that it was incompetent since the witness had not worked for the company since 1930, and could not possibly know what its rules were in 1934, when the accident occurred. That motion was denied. Each member of the crew testified that it was not the rule or custom for a head brakeman, under such circumstances, to inspect the cars or any of them and upon the contrary that it became the duty of the special brakeman to perform that service. No witness testified that he saw Mr. Gray inspecting the cars. The conductor said that as he came from the depot to board the train he observed Mr. Fred Hatch, the special brakeman, inspecting the forward cars. Mr. Hatch also testified that he personally inspected the entire train, and boarded the caboose when it arrived. He said that Mr. Gray did not inspect any of the cars on that occasion.

Much space is devoted in the briefs to the discussion of the two questions as to whether the application of the air brakes did, or naturally would, under such circumstances, cause a violent jolting or jarring of the cars before the train came to a full stop, and whether it was the rule or custom of the company to require the head brakeman to inspect any portion of the wheels and apparatus as a train left a station where it had stopped. Assuming, without so deciding, that the testimony of Mr. Wait created a conflict of evidence, that conflict should be resolved in favor of the appellant on the issue as to whether a judgment notwithstanding the verdict should have been rendered.

In considering the entire evidence included in the record on appeal, it is our duty to weigh the testimony of Purl Wait upon the subject of the rule and custom of brakemen with respect to inspecting freight cars as a train leaves a station.

We are required to consider on this appeal the testimony of all witnesses which remains in the record, regardless of whether it was properly or improperly received in evidence. In the case of Rapp v. Southern Service Co., 116 Cal.App. 699, at page 710, 4 P.2d 195, at page 199, it is said in that regard: “This case upon appeal must be considered in the light of all the evidence embraced in the record before us, including evidence that may have been improperly admitted over respondent's objections.”

Numerous cases support that doctrine.

In corroboration of the testimony of Mr. Wait, regarding the custom of inspecting cars, the appellant relies on Rule 828 of the Transportation Department of the defendant company, which was received in evidence, and reads as follows: “Speed of a freight train must not exceed eight miles per hour for a distance sufficient to permit running inspection when starting. Trainmen must closely watch to see that brakes are released, and if necessary must signal enginemen to stop if wheels are found sliding. Each trainman will be held responsible for wheels slid under that part of the train in his charge. Conductor in reporting flat wheels must give the name of trainman in charge. They must mail promptly to the superintendent a report of flat wheels discovered under the cars in their train.”

The appellant also relies on the admission contained in paragraph V of the defendant's answer, as follows: “That a part of the regular duties of a brakeman, and a part of the regular duties of the decedent at and immediately prior to the accident herein complained of, was the duty to go upon, walk along and over moving freight cars at night as well as in the daytime.”

We do not assume that the foregoing rule or admission of the answer means that it was necessarily the duty of the deceased to inspect the cars of that freight train, from his position on the ground, as the train left the station at Colfax. But conceding that it was his duty to so inspect the cars of the forward one–half of the train, that obligation does not determine the vital issue as to whether he was knocked from the top of a car by the sudden application of the air brakes. The most important questions to be decided are from which car did the deceased fall, and what caused his fall?

It is true that the judgment notwithstanding the verdict which was rendered in this case should not have been granted unless there was no substantial evidence to uphold one or more of the material issues necessary to support the verdict. The established rule in this state regarding the right of a trial court to grant a motion for judgment notwithstanding the verdict is exactly the same as that which applies to a motion for nonsuit. Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576. The rule which is applicable to a motion for judgment notwithstanding the verdict is stated in the case of Myers v. Southern Pacific Co., 14 Cal.App.2d 287, at page 292, 58 P.2d 387, at page 389, as follows: “A motion for judgment in favor of a defendant notwithstanding a verdict previously rendered by a jury should be granted under the provisions of section 629 of the Code of Civil Procedure, only when it appears from a full and fair consideration of the whole evidence, viewed in a light most favorable to the plaintiff according to the same rule which applies to the granting of motions for nonsuit or for a directed verdict, that there is no substantial evidence to support one or more material issues necessary to uphold the verdict.”

On this appeal we are required to confine our attention to the issue as to whether the deceased was killed as the result of being thrown from the freight train by the jolt or jar caused by the sudden application of the air brakes. No other acts of negligence are alleged or relied upon. If a fair and full consideration of the entire evidence, considered in the light most favorable to the plaintiff, precludes the possibility that the deceased met his death as a result of the alleged sudden application of the air brakes, we may not speculate on some other possible or even probable cause of his death not alleged in the complaint. We may not be permitted to reverse the judgment on some ground of negligence which was neither alleged nor relied upon at the trial.

We are unable to escape from the inevitable conclusion that Mr. Gray fell from the second car of the train, for the reason that the conductor and several other witnesses testified that they found fresh blood upon the wheels of that car immediately after the accident. There is absolutely no conflict with respect to the presence of blood on the wheels of the second car. It would have been impossible for Gray to have fallen from that second car as a result of the sudden application of the air brakes, because the train traveled only 250 or 267 feet after the application of the air brakes when it came to a full stop, and the body of the deceased was found under the 44th car from the front, which was a distance of about 1,958 feet from that second car. Immediately after the train stopped, the entire crew searched with lanterns along both sides of the cars for the missing brakeman. The conductor, Lytle, and the fireman, Wolf, first discovered the severed forearm of the deceased beneath the thirty–ninth car, numbered PFE–50598, from the foremost engine. The arm lay on the edge of the graveled crossing of the Standard Oil Company, adjacent to the right–hand or southern rail. The torso and severed head of Mr. Gray were later found about 220 feet further back toward the rear end of the train, under the 44th car from the forward engine. That car was numbered PFE–71921. There is no dispute over the approximate positions where the torso and the arm of the deceased were found. Since the evidence is undisputed that the train ran only 250 to 267 feet after the air brakes were applied, it follows that if the deceased was thrown from the moving cars by the sudden force of the air brakes, he must have been located on a car standing within 250 to 267 feet from the place where his body was found after the train stopped. Both Mr. Smethurst, the engineer, and Mr. Wolf, the fireman, testified positively that the train did not run more than 250 to 267 feet, or the length of five or six cars after the air brakes were applied before it came to a full stop. That does not seem improbable, for it was a very long train which was slowly proceeding up a slight grade at a speed not to exceed eight miles per hour. Since the body of the deceased was found under the 44th car from the front, a distance of some 1,958 feet from the foremost engine, it would have been impossible for him to have been standing on a box car forward of the 38th car from the head engine, if he was thrown to his death by the sudden application of the air brakes, for the train traveled only five or six carlengths after that occurred.

We are unable to escape from the uncontradicted and convincing evidence that the deceased was killed by falling beneath the second car from the front engine. In the first place, the engineer testified that he saw Mr. Gray run from the Mervin Inn after the train started to leave the station, and that he saw him board a car which he designated as the second, third or fourth car from his engine. The engineer saw him climb to the top of the car. Immediately after the train stopped, a critical examination of the wheels of each car was made, from the 44th car to the head engine, for evidence of blood stains. Conductor Lytle and brakeman Bertram L. Larr testified to that fact. They found fresh blood on the inside flanges of the right–hand wheels of the second and fifth cars from the front engine. Upon inquiry, Mr. Larr testified that it was fresh blood. When the train arrived at Sparks the following morning two inspectors, C. H. Russell and W. G. Knight, again examined the wheels of the car of that entire train in the daylight. Both of these men testified that they found blood spots on both rear right wheels on the south side of the second car from the front engine. They said there was a spot on the inside rim of each wheel. Reports of those examinations were subsequently made by the car inspectors. These reports were received in evidence. One of them, which was signed by both inspectors, reads in part as follows:

“This car was second car in train from Eng. blood stains found on east trucks on the wheels on south side of car. There was no signs of brakeman slipping or falling from this car.”

From this undisputed evidence of fresh blood on the wheels of the second car from the front engine, the only reasonable conclusion we can reach is that the deceased fell from that second car and was run over and killed. Since there is no conflict regarding the testimony of several witnesses that the train ran no further than five or six carlengths, or from 250 to 267 feet, after the air brakes were applied before it came to a full stop, we must assume that the force of applying the air brakes could not have knocked him from that second car because the train actually ran a distance of 1,958 feet from the point where he fell. This is conclusively proved by the fact that his body was found beneath the 44th car from the head engine. These physical facts impel us to conclude that the deceased must have fallen from that second car long before the air brakes were applied. It follows that he must have fallen from the car from some cause other than the sudden application of the air brakes. Since that is the only assignment of negligence, and a judgment may not be based on speculation as to the cause of death, or upon some ground neither alleged nor proved at the trial, we are bound to conclude that the trial court properly granted the motion for judgment notwithstanding the verdict.

The judgment is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and SCHOTTKY, Justice pro tem., concurred.