Northwestern Pac. R. Co. v. Fiedler

Citation52 F.2d 400
Decision Date14 September 1931
Docket NumberNo. 6322.,6322.
PartiesNORTHWESTERN PAC. R. CO. v. FIEDLER.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Orrick, Palmer & Dahlquist, of San Francisco, Cal., for appellant.

Thomas F. McCue and Clifton Hildebrand, both of San Francisco, Cal., for appellee.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This was an action brought in the United States District Court for the Northern District of California, Southern Division, under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for injuries alleged to have been received by plaintiff, appellee, while he was employed by defendant, appellant, in interstate commerce.

The complaint, inter alia, alleges:

"That on or about the 21st day of November, 1929, while the plaintiff was regularly employed by the defendant as a bridge and tunnel carpenter in reconstructing the portal at the entrance of Pieta tunnel, a tunnel situated upon the defendant's line of road about one-half mile south of the station of Pieta, California, plaintiff was ordered by the defendant's foreman, Henry Pagels, who was in charge of the work, to go upon said portal and saw planks or boards on the top of said portal and that while he was so engaged two other employees of the defendant, under the direction and order of said foreman, Henry Pagels, removed one of the standards or support of said portal; that the removal of said standard or support caused the planking on said portal to become weakened and while the plaintiff was standing upon the planking, said planking suddenly broke and caused the plaintiff to be thrown with great force and violence to the right of way, a distance of about nineteen (19) feet, which caused the injuries to plaintiff as hereinafter alleged; that said injuries were the direct and proximate result of the negligence and carelessness of the defendant, through its foreman, Henry Pagels, engaged upon said work, in directing and ordering the other employees to remove the standard or support of said portal upon which plaintiff was working at said time, and that notwithstanding said dangerous and weakened condition of said portal, the said foreman, Henry Pagels, ordered and directed plaintiff to continue his work; that at said time the plaintiff was not acquainted with the condition of the structure upon which he was working on said portal and that in going upon the same to perform the carpenter work, as hereinbefore alleged, he relied solely upon the order and direction of said foreman, Henry Pagels, and that the defendant had furnished a safe place upon which the plaintiff was to work; and this plaintiff alleges the fact to be that said portal was wholly unsafe and in a dangerous condition by reason of the negligence of removing the support and standard therefrom.

"That the tunnel hereinbefore described is a tunnel regularly used by the defendant through which it ran its trains engaged in interstate commerce, and that at the time of the injuries hereinafter set forth the defendant was using said tunnel in connection with the operation of its trains engaged in interstate commerce."

The defendant's answer contains a general denial of the allegations of the complaint and also separate defenses of contributory negligence on the part and assumption of risk by the plaintiff.

The statement of facts as set forth in the appellant's brief agreed to by appellee with the exception of a few alleged errors not necessary to be considered by us is as follows:

"Plaintiff, while in the employ of defendant Northwestern Pacific Railroad Company as a bridge and tunnel carpenter, was injured on November 21, 1929, while engaged in enlarging one of the tunnels of the railroad line of the defendant. It is admitted that he was engaged in interstate commerce and this action to recover damages for the injuries sustained at that time is brought under the provisions of the Federal Employers' Liability Act.

"Plaintiff was an experienced bridge and tunnel carpenter, having been engaged in that line of work for some sixteen years prior to the accident. He was a member of a gang working on the tunnel in question under the orders of its foreman, Edward Pagels. The gang was working on both ends of the tunnel at once, and Fiedler was a member of that portion of the gang working in and about the north portal of the tunnel. The work to be done consisted in enlarging the tunnel and in replacing the wooden tunnel lining with new timbers to the enlarged size of the tunnel. The tunnel lining consisted of so-called `sets,' comprised of two large upright posts or timbers at the side of the tunnel and an arch in a gothic shape at the top. These sets were placed at intervals of from three to four feet apart throughout the tunnel and across the top and sides of the sets were laid boards and smaller wooden timbers which prevented the earth and other materials in the inside of the tunnel from falling in upon the tracks. These smaller timbers were called `lagging' and were not nailed to the sets, but were held in place by the earth and material pressing upon them. At each portal of the tunnel there was what was called the `portal' or `square' set. The portal set consisted of four heavy timber uprights on each side of the tunnel set close together, and four heavy timbers stretched across the top of the uprights. On the top of these cross timbers on the portal set there was nailed a set of planks three inches thick and some twelve or fourteen inches wide of double thickness, which planks ran lengthwise with the tunnel. From the inside edge of the portal set to the first set there was a distance of only a few inches and between that first tunnel set and the next or second set there was a space of about three feet. The hill above the north portal of the tunnel had been dug away so that the edge of the hill was almost directly above the second set to the south from the portal set and, therefore, at the time of the accident the entire portal set and the second set were out in broad daylight.

"The accident happened shortly after noon on November 21, 1929. In the morning before lunch the first set to the south of the portal set had been removed, and all the lagging between the first and second set had fallen in. The double set of planks which were nailed on top of the portal set and which ran lengthwise with the tunnel were about eight feet...

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