Atchison, T. & SF Ry. Co. v. Seamas

• Decision Date: 16 December 1952
• Docket Number: No. 13246.,13246.
• Citation: 201 F.2d 140
• Parties: ATCHISON, T. & S. F. RY. CO. v. SEAMAS.
• Court: U.S. Court of Appeals — Ninth Circuit

201 F.2d 140 (1952)

ATCHISON, T. & S. F. RY. CO. v. SEAMAS.

No. 13246.

United States Court of Appeals, Ninth Circuit.

December 16, 1952.

Robert W. Walker and J. H. Cummins, Los Angeles, Cal., Peart, Baraty & Hassard, San Francisco, Cal., for appellant.

Michael & Papas, Stockton, Cal., for appellee.

Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.

BONE, Circuit Judge.

Appellee brought this action under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., for injuries sustained due to the alleged negligence of appellant, his employer, a common carrier by railroad engaged in interstate commerce. The jury returned a verdict in favor of appellee and awarded damages of $22,500. Judgment was entered on the verdict and this appeal followed.

The accident causing appellee's injuries occurred at appellant's Mormon Railroad Yard at Stockton, California on the night of December 9, 1950. In that portion of the yard here concerned there are two tracks, the No. 1 track on the north and the No. 10 track on the south, which run in a general east-west direction and converge at their easternmost points, from which junction there is a single track running to the east, known as the "tail track." The three tracks thus form a rough "Y" pattern. Extending west from tracks 1 and 10 are other tracks, numbered consecutively from the north to the south. Thus tracks 2, 3, 4, 5 and 6 are connected with the No. 1 track and tracks 7, 8 and 9 are connected with the No. 10 track.

The tracks are laid out in this manner to facilitate switching cars on to any one of the tracks numbered 1 to 10 where they might be needed. By properly setting the switches at the several track junctions, a car can be pushed west on the "tail track," "kicked," i. e., uncoupled, and propelled on to either track 1 or track 10 and from either of these on to any one of the tracks numbered 2 to 9.

On the night in question appellee was engaged in his duties as a switchman in the yard. The night was dark and foggy. An engine had pulled a train of five box-cars east on track 10 to the tail track preparatory to "kicking" them on to certain of the tracks numbered 1 to 10. As this was being done, appellee was setting switches to the north on track 1. The last, or westernmost car in the train, which we shall call car No. 1, was to be kicked on to track 9. This car, however, moved only a short distance past the junction of tracks 1 and 10 after being kicked, instead of moving on down track 10 and switching on to track 9. When the next car, which was to be placed on track 1, was kicked, it was seen by appellee that it was going to collide with car No. 1, since the latter car had not sufficiently cleared the junction of tracks 1 and 10. At appellee's direction the car was switched on to track 10, behind car No. 1, to avoid possible derailing of the second car. Thus the second car was coupled with car No. 1.¹

Appellee then walked from the north to the space between the two cars to see that they had been coupled. He told his foreman, Mahan, who was on the south side of the cars, that he was going to go up and check the brake on car No. 1 to determine whether it was set. Mahan said, "Okay, kid, go ahead."² Appellee climbed the ladder at the northwest corner of the car to the brake platform, which was a short distance from the top of the car. When he had one foot on the platform, the two cars were struck by the train of cars from the east, and appellee was knocked from the box-car to the ground, incurring the injuries for which this suit was brought. The signal to the engineer to move the train in to the two coupled cars was given by the foreman, Mahan, with the object of coupling and kicking car No. 1 to track 9, as originally planned.

Appellant's specifications of error are confined to two contentions. One relates to the giving of a certain instruction to the jury; the other charges that the damages awarded appear to have been given under the influence of passion or prejudice.

The claimed erroneous instruction reads as follows:

"When a foreman gives an employee an order, either expressly or by implication, the employee has a right to assume in the absence of warning or notice to the contrary, that he would not thereby be subjected to injury."

Appellant argues first that the effect of the instruction was to subject appellant to absolute liability for any injury incurred by appellee while acting in obedience to the order of the foreman. If this is the meaning which the law must attribute to the instruction, it would be erroneous since under the Federal Employers' Liability Act the employer's conduct need only measure up to what a reasonable and prudent person would have done under the same circumstances. The Supreme Court has held that a "jury should hold a master `liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances', bearing in mind that `the standard of care must be commensurate with the dangers of the business.'"³

However, as we read the instruction, it has no bearing whatsoever on the question of what conduct of an employer will result in liability. The instruction is not that an employee acting in obedience to a superior's order has a right not to be injured. It provides only that upon being given an order by a foreman, an employee has a right to assume that he will not thereby be subjected to injury. What an employee is entitled to assume has a vital bearing on the question whether his acts are or are not negligent and the question whether the employer's liability, if any, should be reduced due to contributory negligence of the employee.⁴ But it in no way affects the question of what conduct of the employer will subject him to liability.⁵ In other instructions that question was fully covered by the court.

Appellant also argues that the effect of the instruction was to withdraw the question of contributory negligence from the jury, since it admonished in effect that where a foreman gives an employee an order, the employee, in the absence of warning or notification to the contrary, can proceed recklessly in obedience thereto, regardless of consequences, without being subject to a finding that his acts were negligent.

Appellee has read the word "notice" in the instruction as meaning "notification" and if this is a correct interpretation, there would be grave doubts as to the correctness of the charge. If this is its meaning, then the word "warning" in the instruction is unnecessary. We think a plain reading of the instruction would indicate that the word "notice" is used in the sense of "knowledge."⁶

Thus viewed, the instruction, as an abstract proposition of law, is more favorable to appellant than the law would warrant. The long-settled common law rule is that where an employee acts in obedience to a direct order of his principal or a vice-principal, he is not negligent unless the danger is so glaring and imminent that no reasonable person would incur it, even under orders.⁷ Even knowledge and appreciation of the danger will not be sufficient to charge the servant with negligence when acting in obedience to a direct command unless he not only knows what is the risk to be encountered, but also that it will probably be attended with injury which he cannot void by the exercise of care and caution.⁸

There remains another and more difficult question as to the correctness and adequacy of the challenged instruction. Appellant contends that it ignores the distinction between the effect of a general order, directing only what is to be done, and a specific order specifying not only what but how a thing is to be done. Here the order given by the foreman was general, directing appellee simply to check the brake on the boxcar, without specifying the manner or means of carrying out the order. It was appellant's theory at the trial that appellee was negligent in boarding the box-car from the north side out of sight of the engineer and foreman and in violation of the settled custom of the workers in the yard.

Where a general order is given, an employee must use ordinary care in its execution, and the giving of the order does not affect the question whether the servant has been negligent in his manner of carrying it out, where there is a choice open to him.⁹

Certainly the jury, under the challenged instruction, was obliged to find appellee negligent in the manner of carrying out the order if they found that he had "warning or notice" of danger. What remains of appellant's argument on this point is that the standard of care exacted of appellee in carrying out the order was fixed too low by the instruction. We are quite persuaded that it was for the jury to determine whether in appellee's choice of means in executing the order he exercised ordinary care, or, stated differently, whether appellee knew or should have known that his choice exposed him to an unreasonable risk. This question could not be resolved by simply finding that appellee had no warning or that he did not have notice that he might be subjected to injury. If the jury found that appellee should have known of the risk involved, i. e., had constructive notice of the risk, then appellee should still have been found to have been contributorily negligent.¹⁰

While the instruction does not make the distinction explicit, neither does it affirmatively misstate the law. Paraphrasing those parts here pertinent, the instruction is that when a foreman gives an order, the employee can assume that he will not thereby be exposed to injury. It means that the employee can assume he will not be subjected to injury by the order. Thus, before the employee can rely upon the order instead of independently exercising ordinary care for his own safety, there must be a relation of cause and effect between the order and his acts. Under the law as stated in the instruction, appellee could, in the absence of warning or...