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

• Decision Date: 27 April 1950
• Citation: 97 Cal.App.2d 229,217 P.2d 494
• Court: California Court of Appeals Court of Appeals
• Parties: BLUNK v. ATCHISON, T. & S. F. RY. CO. Civ. 17190.

Page 494

217 P.2d 494

97 Cal.App.2d 229

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

Civ. 17190.

District Court of Appeal, Second District, Division 1, California.

April 27, 1950.

Hearing Denied June 22, 1950.

Robert W. Walker, J. H. Cummins, Los Angeles, for appellant.

Warner, Peracca & Magana, Los Angeles, for respondent.

WHITE, Presiding Justice.

Defendant railway company appeals from a judgment against it entered upon the verdict of a jury in an action for personal injuries brought by an employee under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Defendant maintained a 'change room' in a building located near the roundhouse in its yards at Winslow, Arizona. Plaintiff, a fireman, was injured in the change room when he went there preparatory to changing his clothes in order to go on duty. He kept his working clothes in a metal grip, and had placed the grip on a rack in the change room at approximately eye level. When he reached for the grip to take it down from the rack, it rolled toward him more easily and suddenly than he had anticipated and with unexpected weight, causing him to step back against a bench and fall against a table, injuring his back. Upon opening his grip he found therein a diesel brake shoe, estimated to weigh approximately fifty pounds. On the rack where his grip had been, he found a glass tube, described as a boiler 'water glass', something less than an inch in diameter and from 12 to 16 inches long. Plaintiff's injuries resulted from the fact that the unexpectedly heavy bag, moving easily on the glass as a roller, threw him off balance. He failed to regain his balance because in stepping back he struck a bench, with the result that he fell against a table.

Under the Federal Employers' Liability Act, there can be no recovery in the absence of a showing of negligence on the part of the employer. Unless the facts just stated, together with other evidence to which we will presently refer, warrant an inference of negligence on the part of the railway, management or negligence of an employee legally imputable to the employer, the judgment herein must be reversed.

It is the position of appellant that the railway is not liable for an injury occasioned by sportive acts or horseplay of fellow employees not in the scope and course of their employment; that there was no evidence that the railway had notice that its employees were engaging in horseplay; that brake shoes and water glasses are not inherently dangerous articles which the master should keep in a safe place; and that consequently and finding of negligence on the part of the railway would be based on the sheerest speculation. We are in accord with appellant's contentions.

The obvious conclusion from the facts related is that the plaintiff was the victim of a practical joke, perpetrated by either a visitor to the change room or by a fellow employee-- in all probability by the latter. The placing of the brake shoe in the bag and the roller beneath it was a deliberate act. The practical joker was guilty of negligence, it is true, but it was not negligence for which the employer is responsible. It is, we think, beyond the bounds of reasonable inference to assume that the placing of the objects in and under the bag was done within the course and scope of an employee's duties.

The evidence and the theory upon which respondent urges that the verdict should be upheld are contained in the following argument taken from his brief:

'The evidence presented several factors from which a jury could, and in this case did, reasonably infer that the railroad had been negligent and that said negligence proximately caused plaintiff's injuries. There was substantial evidence to the effect that debris and 'junk of all sort' was littered in and about the change room before and during the period when the accident occurred. Mr. Blunk testified that there were tie plates, railroad spikes, knuckle pins, broken knuckles and brake-shoes in the change room for several months prior to the accident. Indeed, he testified that for some time a brake-shoe had been used as a prop for the door to the change room. Ross Hazlett, Chairman of the Safety Committee for the employees, also testified that he had seen various items such as those mentioned by plaintiff littered about the change room for several months, and had complained to the company of these conditions as Safety Chairman. Corroborating the testimony of Blunk and Hazlett, one Santa Fe witness, J. R. Kenney, also testified that he had seen similar objects about the change room and that he had also seen a box-car brake-shoe used us a door prop.

'There was also considerable testimony showing the employees who used the change room had a duty to keep the premises clean. As plaintiff stated, there was a sign in the change room, 'Please Keep This Place Clean', and the roundhouse foreman had reprimanded the men for not keeping the room cleaner. Counsel respectfully submits that the jury could reasonably infer that the employees, in attempting to keep the room clean in accordance with their duties, would indulge in such practices as 'sweeping under the rug.' In short, one could reasonably infer that persons using that room would take objects off the floor and place them in any available receptacle. The fact that an employee would carelessly and negligently place a brake-shoe or any other stray object in someone's grip in order to 'get it out of the way' merely accentuates that employee's failure to meet the standards of ordinary care. It should be noted that there was a junk pile...