Bolch v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 29 February 1916
• Docket Number: 13050.
• Court: Washington Supreme Court
• Parties: BOLCH v. CHICAGO, M. & ST. P. RY. CO.

155 P. 422

90 Wash. 47

BOLCH v. CHICAGO, M. & ST. P. RY. CO.

No. 13050.

Supreme Court of Washington

February 29, 1916

Department 1. Appeal from Superior Court, Pierce County; Clifford Judge.

Action by John M. Bolch against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Gordon & Easterday and G. C. Nolte, all of Tacoma for appellant.

George W. Korte, of Seattle, and H. S. Griggs, of Tacoma, for respondent.

ELLIS J.

Action under the federal Employers' Liability Act to recover damages for personal injuries. Plaintiff was employed by defendant as a member of a night switching crew in its yards at Tacoma. The crew consisted of a foreman, the plaintiff and another. On a night late in August or early in September 1913, this crew was engaged in removing from the repair tracks located at one end of the yard repaired empty cars, leaving on the repair tracks other cars to await repair. The repaired cars were being taken over a lead track from the repair tracks to storage tracks at the other end of the yard, there to remain till used by another switching crew in making up trains. The repair tracks are used indiscriminately for loaded and empty cars employed in both interstate and intrastate commerce. There are several of these repair tracks all converging to a connection with the lead track. At the time in question there were on repair track No. 1 several cars some of which had been repaired while others had not. Nearest the switch opening on the lead track were some ten cars which had been repaired. Back of these were three unrepaired cars, and stil back of these were other repaired cars. For the purpose of getting out all of the repaired cars the switching crew attached the engine to the first repaired cars and the three unrepaired cars, and hauled these out onto the lead track with the intention of backing up and 'kicking' the three unrepaired cars onto repair track No. 2, which was apparently empty, and then taking up the repaired cars remaining on track No. 1. In attempting to kick the three unrepaired cars onto track No. 2 the foreman, whose duty it was to turn the switch, admittedly failed to do so. The string of cars went back upon the track whence they came and ran against the remaining empty cars on that track. The impact threw plaintiff from the side of a flat car on which he was riding in a leaning posture in the act of uncoupling to complete the intended kick in response to the foreman's signal. He claims that he fell with his back across the rail of an adjoining track, and was so injured as to induce tuberculosis of the spine. There was evidence warranting the inference that when trains arrive in the railroad yard the cars are inspected and carded with their destination for the information of the switching crews in breaking up the trains and distributing the cars. Plaintiff testified that one of the three unrepaired cars which were being cut out was a box car loaded with dressed lumber bearing a card giving the number of the car and its destinction as Aberdeen, S.D. He claims that he noticed this fact particularly because some of the lumber by reason of the jar broke through and protruded from the end of the car, and that, when the foreman came to help him up after his fall, he called attention to that fact. The foreman and the other member of the crew expressed the belief that none of the cars was loaded. It is conceded that the defendant is a corporation engaged in interstate commerce. The negligence alleged was the failure of the foreman to turn the switch. Defendant by answer admitted the plaintiff's employment, denied negligence, and set up as affirmative defenses contributory negligence and assumption of risk. These were traversed by reply. Verdict and judgment were for defendant. Plaintiff appeals.

Appellant resolutely assails the court's instructions as erroneous. Respondent combats this view, and insists that in any event they were immaterial, in that: (1) Appellant assumed the risk; (2) there was no proof of injury. Preliminary to a discussion of the instructions we shall consider these claims.

Respondent argues that the appellant assumed the risk of being thrown from the flat car upon which he was riding, because he must have known that standing with his feet in the stirrup bending over and holding to a cleat on the floor of the car was an insecure position. Such was, in fact, his position, but a statement of the claim makes it manifest that the question was one of contributory negligence rather than assumption of risk. Respondent cites Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, which holds that the Employers' Liability Act does not abrogate the defense of assumption of risk, as it does that of contributory negligence, except in case of a violation of some federal statute enacted for the protection of employés. In that case the risk held assumed was of an obviously defective water gauge which exploded and caused the injury. Here there was no defect in the flat car nor in its coupling nor in any other appliance. Whether it was inherently dangerous to ride upon the flat car as appellant did instead of walking, as his foreman said he should have done, was a question for the jury. We cannot say of riding in that position instead of walking that, as a matter of law, the minds of reasonable men might not differ as to its imprudence. In any event the question was one of contributory negligence, not the assumption of risk of an obviously defective appliance or place of work not attributable to negligence independently of some federal statute which is all of the assumption of risk as at common law left unmitigated by the Employers' Liability Act. This distinction is elaborately pointed out and explained in the opinion cited. See 233 U.S. pp. 501 to 504, inclusive, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. See, also, Lauer v. Northern Pacific Ry. Co., 83 Wash. 465, 145 P. 606. The court gave correct instructions covering both assumption of risk and contributory negligence and their effect under the statute. Upon the evidence both questions were for the jury.

As to appellant's injuries, there is no doubt that he fell by reason of the impact of the cars. The evidence, however, casts some doubt upon his claim that he fell with his back across a rail. As to his condition, three physicians who examined him prior to the trial testified that he was suffering from tuberculosis of the spine affecting two of the vertebrae, and attributed his condition to the fall as a predisposing cause. Three other physicians who had examined him testified that he was suffering at the time of the trial from rheumatoid arthritis caused by an infection from a diseased mouth and teeth or from an old gonorrheal trouble which his history discloses. The general surgeon of the respondent in response to hypothetical questions expressed the same opinion. Whether he was, in fact, suffering from tuberculosis of the spine induced by the fall was a question for the jury. Where seven learned doctros cannot agree, we would hardly be warranted in saying that the minds of reasonable men may not differ as to the cause and diagnosis of the man's condition.

The court, after defining interstate commerce and intrastate commerce in general terms and telling the jury that the appellant could not recover unless at the time of his injury he was employed in interstate commerce, gave an instruction as follows:

'If, on the other hand, you find that the movement of the cars at the time plaintiff was injured was not for the purpose of furthering or aiding in the forwarding of the car or cars so loaded for a destination outside the state on its journey towards such destination, but was merely for the purpose of moving said car or cars off one track to another in the same yard, or for the purpose of taking said car or cars out of the track on which they stood in order that the switching crew might take out other cars out of the same track, and afterwards put back the cars so loaded in to the same or another track where they would remain for the same purpose for which they were originally placed in the yard, and that the real purpose of the movement of cars at that time was to enable the switching crew to keep certain empty cars then located on the repair tracks of the said company, that they might transfer them to another yard of the company where they would be subject to any use to which the company might later designate them, then I instruct you that the plaintiff was not at the time engaged in interstate commerce, and that the movement of the cars in which they were engaged was not for the purpose of furthering or aiding the operations of interstate commerce, and the plaintiff cannot recover in this action for any injuries he may have received by failing from the car in the manner he alleges.'

The giving of these instructions is assigned as the sole ground of error. Manifestly the last was tantamount to an instruction that upon the facts shown the appellant could not recover. The history of the Employers' Liability Act and its remedial purpose impel to the conclusion that it should be liberally construed as to the inclusion of its beneficiaries in order to effect its remedial purpose notwithstanding the fact that it is in derogation of the common law. Johnson v. Southern P. Co., 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed. 363; Colasurdo v. Central R. R. of New Jersey (C. C.) 180 F. 832; Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Horton v. Oregon- Wash. R. & N. Co., 72 Wash. 503, 130 P. 897, 47 L. R. A. (N. S.) 8.

When the employer...