Abeyta v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 23 February 1959
• Docket Number: No. 6416,6416
• Citation: 65 N.M. 291,336 P.2d 1051,1959 NMSC 18
• Parties: Monico S. ABEYTA, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1051

336 P.2d 1051

65 N.M. 291

Monico S. ABEYTA, Plaintiff-Appellant, v.ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Defendant-Appellee.

No. 6416.

Supreme Court of New Mexico.

Feb. 23, 1959.

Rehearing Denied April 6, 1959.

Joseph L. Smith, Henry A. Kiker, Jr., Albuquerque, for appellant.

B. G. Johnson, R. G. Cooper, Albuquerque, for appellee.

SADLER, Justice.

The plaintiff below appears as an appellant before this Court complaining of a judgment of the district court of Bernalillo County rendered against him on the verdict of a jury in an action in which he sought damages in a substantial amount under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for injuries said to have been suffered by him while working as a car inspector for defendant at Belen, New Mexico, on June 4, 1955.

On the date mentioned, the plaintiff as member of a three-man crew of car inspectors had gone to Track 10 in the Belen yards, preliminary to inspecting the brakes and mechanical equipment on a freight train, approximately 110 cars long, each car being 55 to 60 feet in length.The Belen yards contain 21 tracks, all running north and south and each is assigned a number, running consecutively from the west to the east.

After reaching Track 10, a fellow car inspector, Matt Baca, proceeded north to the end of a train, still in process of being coupled together, or 'made up' at the time the inspection crew arrived at the track.Another member of the crew, Albert Perry, had gone to the center of the train, it being plaintiff's duty to inspect the south part, or caboose end of the train.The car inspectors were not supposed to commence their work until all the cars were coupled together and the train completely made up; and not alone until all cars had been coupled together but, in addition, until blue flags had also been posted on the engine and caboose (indicating no part of the train should be coupled to or moved).

The making up process consumed about 35 or 40 minutes after arrival of plaintiff at TrackNo. 10 on the early morning in question.Since the making up, or coupling of the train is completed by the attachment of the caboose to the last car of the train, it becomes the duty of the car inspector working the rear end of the train to give the inspector at the head end of the train a 'made-up' signal when the caboose has been attached.This he ordinarily does, in fact always does, by relaying his 'made- up' signal through the inspector on duty at the middle of the train to the man at the head of the train.In other words, there is no signal directly from the rear inspector to the head inspector, unless for some unexplained reason, there happens to be no middle man on duty.There was such a middle man on duty on this occasion.

The made up signal is given by lantern during the hours when it is dark, as it was on the occasion in question.According to testimony of a climatologist for the United States Weather Bureau the sun did not rise at Belen on the day of plaintiff's injury until 4:54 a. m. However, there was a period of 'civil twilight' preceding sunrise described as 'the period before sunrise during which normal outdoor activities can be carried on without artificial light.'It starts out with the light being dim, then growing progressively brighter.It was still dark at 4:25 a. m. on the day in question.

There were flood lights in the Belen yard, erected atop poles approximately 85 feet in height, but it was necessary for car inspectors to use flashlights or lanterns to perform their work.Such artificial lights were issued by defendant to car inspectors working night shifts.

About the time the task of making up the train to be inspected was completed, car inspector Perry had started a fire with some oily waste he had found along the track.Plaintiff testified he was not able to get the made up signal through to Matt Baca at head of the train because the fire was in his line of vision and made it impossible for him to see or acknowledge such signals.Plaintiff's testimony in this regard was supported by Matt Baca at head of the train.Perry, though admitting he had started the fire, minimized its size and as well its nearness to Track 10, saying it was only a small amount of oily waste which he found lying along Track 8 to which he lighted a match.

According to plaintiff, because of his inability to signal by or through the fire, he stepped west from Track 10, to Track 9, to signal around the fire.On Track 9, he was truck by an unlighted, unmanned box car, rolling free down the track and suffered the injury of which he complains.Both plaintiff and Baca, who, with Perry worked on the night shift, testified to having seen a bulletin posted, prohibiting the lighting of fires in the yard.Car inspector Perry, who worked on the night shift said he had no knowledge of any bulletin being posted as described by Baca and plaintiff.Nor did Perry think such a fire as he built, when and where he built it, would interfere with the vision of any one attempting to signal through the middle man to the head man of the train on Track 10.

During the progress of the trial, after the jury had retired, the jury sent the trial judge the following message, to wit:

'Dear Judge Reidy:

'We are hung on the point of whether the violation of the fire bulletin is, or can be considered as contributing to any negligence on the part of the Santa Fe.May we be advised?

'The Jury.'

The trial judge did not answer the jury's inquiry.

Not once in his statement of facts does the plaintiff designate as a ground of negligence, the one here mainly relied upon.In his complaint, the plaintiff had charged, expressly, as negligence the allowance by defendant of a detached freight car to roll loose, 'without lights, flags or a rider'; and, that as a consequence thereof the plaintiff was struck and injured when he stepped across Track 9 to signal the head inspector the train was made up and ready for the placing on it of blue flags, thereby to keep it from moving.

Paragraphs 3 and 4 of the complaint, so far as material, read:

'3.That on or about the 4th day of June, 1955, at about 4:30 A. M., the plaintiff was attempting as part of his duties to signal the car inspector at the head of a train which he was to inspect and which was located on track 10 near Belen, New Mexico; that in attempting to signal the head car inspector so that blue flags could be placed upon the train and thereby keep the train from moving, the plaintiff stepped back across track 9.That the defendant at that time negligently allowed a freight car to roll loose without lights, flags or a rider and the plaintiff was struck by said freight car and received severe injuries to his back and internal organs.

'4.That as a proximate result of the negligent failure of the defendant to furnish the plaintiff a safe place to work and in failing to furnish adequate help and to properly supervise its car, the plaintiff has received severe, permanent and painful injuries as hereinbefore described * * *.'

In their opening statement to the jury, one of counsel for the plaintiff said:

'* * * and the evidence will further show that while he was so engaged in discharging his duties that the Santa Fe Railroad failed to provide him with a safe place to work, and that as a result of its negligence in failing to provide him with a safe place to work, and that while he was engaged in the operation of signalling to the head car inspector at the head of the train, some 110 or 120 cars ahead of him on the north side, he was struck by a car on an adjacent track, and that this car was negligently released; and that the railroad for that reason, failed to discharge its duty to provide a safe place to work for Mr. Abeyta.

* * *

* * *

'We will also by our evidence show that this was the result of the direct and actionable negligence of the Santa Fe Railroad, in failing to provide him with a safe place to work.The evidence we will introduce will also show that the Santa Fe Railroad failed to provide a sufficient number of employees in order to properly protect this plaintiff, Mr. Abeyta, in the discharge of his duties in the Belen Yards. * * *'(Emphasis added).

Nowhere in the complaint or in his opening statement did the plaintiff point out or allege that the precise negligence here claimed to have resulted in his injury, to wit, a 'fire,' had any place or part in the unfortunate accident said to have been suffered by him.Counsel for defendant say it was plaintiff's theory below, as emphasized by the allegations of his complaint and by the seeming understanding of one of his own counsel when he made his opening statement to the jury, that the negligent releasing of the car to roll free, unmanned and unlighted down a track adjoining that on which plaintiff's train of cars stood, whereby he suffered injury when he stepped upon such track in the course of his signaling, was the negligence which constituted his surroundings an unsafe place to work, as well as being inherently negligent in and of itself.

In conformity with such an understanding of plaintiff's theory, counsel for defendant point out that at the first attempt of plaintiff to advance as a ground of negligence the 'fire' about which plaintiff says so much in this Court, they interposed their objection to any testimony relative thereto as shown by the following excerpts from the record, to wit:

'Q.Well, what, if anything was there in the yard to keep people warm?

'Mr. Cooper: If the Court please, we object to the form of the question on two grounds.First, it's leading.There's no evidence to indicate that it was necessary to keep anyone warm.It's immaterial to any issue in the case.

'Mr. Smith: Well, if the Court please, it is one of the grounds of negligence in furnishing him with a safe place to work, that this particular line of testimony is offered for.

'The Court: Well, it may be remote, but...