Wilkerson v. McCarthy

• Decision Date: 29 November 1947
• Docket Number: 7017
• Court: Utah Supreme Court
• Parties: WILKERSON v. McCARTHY et al

187 P.2d 188

112 Utah 300

WILKERSON v. McCARTHY et al

No. 7017

Supreme Court of Utah

November 29, 1947

Appeal From District Court, Third District, Salt Lake County; J Allan Crockett, Judge

Personal injury action under the Employers' Liability Act by Clyde Wilkerson against Wilson McCarthy and another as trustees of the Denver & Rio Grande Western Railroad Company. Judgment for defendant and "plaintiff appeals.

Affirmed.

Rawlings, Wallace & Black, of Salt Lake City, for appellant.

Farnsworth & Van Cott, Grant H. Bagley and Dennis McCarthy, all of Salt Lake City, for respondents.

McDONOUGH C. J., and PRATT and WOLFE, JJ., concur.

OPINION

LATIMER, Justice.

Action for personal injuries which occurred July 26, 1945, as a result of plaintiff's falling into a wheel pit in the defendant railroad's coach yard at Denver, Colorado. The action was brought under the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq. From a directed verdict of 'No cause of action', plaintiff appeals. The parties will be referred to as they appeared in the trial court.

Plaintiff was employed as engine foreman in defendants' Burnham Yard at Denver, Colorado. His crew consisted of himself, two switchmen, an engineer and a fireman. Plaintiff's work consisted of general passenger car switching in the yard, making up trains, and spotting 'bad order' cars for repairs.

The place of the accident was the wheel 'drop pit', rectangular in shape, four feet two and one-half inches wide, and ten feet seven inches deep, with concrete walls, the top of which were flush with the level of the ground. This pit ran underneath three or more parallel tracks and was used by the pit men to change or make repairs to the wheels and trucks of the various passenger cars of the defendants. The wheel pit lay with its long axis approximately east to west, and the tracks crossing it ran approximately north to south. The tracks which crossed the pit and which are concerned in this action were identified as the Wheel Track, which lay to the west, and on which the wheels were brought to and taken away from the pit; and Track Number 23 1/2, which is the track over which cars would be brought to the pit for repair.

When in use, the pit was enclosed on three sides, north, south, and west, by means of four corner-posts and a connecting chain; and on the fourth or east side by whatever passenger car happened to be spotted over the pit for repair. Also, when the pit was in use, all the cover boards would be removed except one called the 'permanent board' which always remained in place, and possibly another, which was located immediately to the west of and adjacent to the west rail of Track 23 1/2. It was the permanent board from which the plaintiff fell, (and which is therefore the one of paramount concern to this case). This board was 22 inches wide, 4 feet 2 1/2 inches long, and weighed 75 pounds. It was made up of several planks bolted together, and was located in such a position that its east edge was 9 1/2 inches to the west of the chain posts nearest Track 23 1/2. This board crossed the pit at right angles to the long axis and parallel to the rails of Track 23 1/2. At the time of the accident, the cover board immediately adjacent to the west rail was in place, but it was completely covered over by the overhang of the floor of the tourist sleeper then standing on the track.

To further describe the immediate scene of the accident, the distance from the west rail of Track 23 1/2 to the near edge of the permanent board was 45 1/2 inches; the overhang of the car standing on the track was 31 inches; the floor of this car was a vertical distance above the ground of 44 inches; the east chain posts were 36 inches west from the west rail of Track 23 1/2; and the east edge of the permanent board was 9 1/2 inches west of the post nearest the track. The chain posts were 42 inches high. (These measurements are given to assist the reader in forming a picture of the space through which plaintiff squeezed in order to get onto the board from which he fell.) In other words, if a plumb bob were dropped vertically from the west side of the Pullman car to the ground, the horizontal distance between such line and the chain post nearest the car would be five inches at the ground, and would increase to approximately seven inches at the top of the post, because the post leaned slightly to the westward and away from the track. Other and wider types of passenger cars reduced this horizontal distance at the top of the post as much as two to six inches. When the pit was not in use, the posts would be removed from their sockets, the chains taken away, and the entire pit covered over by means of heavily constructed wooden boards similar to the permanent board, having angle irons or 'z' irons at either end to make them fit snugly against the concrete edges of the pit.

At the time of his injury, plaintiff was seeking out a Mr. Hawkins who was employed by defendants as a car man, for the purpose of, to use the plaintiff's own words, 'to see if he was through with this particular car so the car could be moved and I could go get another bad order car that I knew were in a hurry for and spot it for him * * *' Not seeing Mr. Hawkins anywhere, plaintiff proceeded south along Track 23 1/2 and along the west side of the car which was standing over the wheel pit, and started across the wheel pit, using the permanent board as a walkway. The safety chains were up at the time, and in order for plaintiff to cross the pit he had to turn sideways and slide between the side of the car and the northeast chain post. He put his right hand on the top of the north chain post nearest the track, turned his body sideways so that he faced west, slid through the 5 to 7 inch space between the car and the post and swung his body around the post. He then moved a few inches to the west along the north edge of the pit, placed his right foot onto the permanent board, and thereupon fell off the west side of the board into the pit, sustaining the injuries complained of.

Plaintiff was not required by the necessity of finding Mr. Hawkins to cross the wheel pit at all. He could have gone around the pit, an added distance of 40-odd feet; he could have observed whether the blue flag had been removed from the track, which would have indicated the work was finished and the car was ready to be moved; or else he could have stopped at the north side of the pit and called out for Mr. Hawkins or his helper and obtained the desired information that way.

Plaintiff testified that when he crossed this same board about an hour and a half before the accident, he observed some grease or oil on the board; and that at the time of the accident he felt as if his foot slipped. The evidence was that the car men coming up out of the wheel pit would track some grease and oil onto this board, and further, that defendants had not cleaned off the board for the past eight months prior to the accident, though they did clean out the bottom of the pit once or twice a week.

Plaintiff testified that prior to installation of the safety chains it was the practice of the men working generally in the yard to cross the wheel pit by means of the permanent board, and that there was no change in this practice after the chains were put up, other than that the men had to go around the post and between it and the side of the car standing on the track. Plaintiff further said that he had never received any instructions forbidding him to cross the pit in this manner. However, the testimony in regard to the claimed practice of employees going between the posts and the cars was directly contradicted by Elledge, the general car foreman; by Hawkins, the car man working at the pit; and by Johnson, a flagman, all of whom testified that, since the chains were put up, they had never seen anyone other than the car men working in the pit cross the pit by means of the permanent board.

Much has been said in recent cases about the lengths to which the Supreme Court of the United States has gone in requiring submission to the jury of cases arising under the Federal Employers' Liability Act. And much has been said about how a failure to submit a case to the jury deprives plaintiff of a constitutional right. Illustrative of how far one of the Federal Courts has gone in its analysis of the recent decisions of our highest court is the following quotation from Griswold v. Gardner, (7 Cir.), 155 F.2d 333 334: 'The Supreme Court, commencing with Tiller v. Atlantic Coastline R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967, in a succession of cases has reversed every court (with one exception hereinafter noted) which has held that a defendant was entitled to a directed verdict. In the Tiller case, the Supreme Court reversed the Court of Appeals for the Fourth Circuit, 128 F.2d 420, which had affirmed the District Court in directing a verdict. The case, upon remand, was again tried in the court below, where a directed verdict was denied. For this denial the Court of Appeals reversed and again the Supreme Court reversed the Court of Appeals, holding that the District Court properly submitted the case to the jury. In Tennant v. Peoria & P.U.R.Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, this court reversed the District Court on account of its refusal to direct a verdict, and our decision [7 Cir.], 134 F.2d 860, was reversed by the Supreme Court. In Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, the Supreme Court of Vermont held that there should have been a directed verdict for the defendant, and the Supreme Court reversed the decision of that court. In Blair v. Baltimore & O. R. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490, the Supreme Court ...