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

• Decision Date: 23 January 1959
• Docket Number: No. 6387,6387
• Citation: 1959 NMSC 5,65 N.M. 207,334 P.2d 1112
• Parties: Jeff BOURGUET, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1112

334 P.2d 1112

65 N.M. 207

Jeff BOURGUET, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellee.

No. 6387.

Supreme Court of New Mexico.

Jan. 23, 1959.

McAtee, Toulouse & Marchiondo, Arturo Ortega, Albuquerque, for appellant.

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

McGHEE, Justice.

On December 31, 1958, we filed an opinion, 65 N.M. 200, 334 P.2d 1107, in which we refused to dismiss the appeal in this case on jurisdictional grounds, and we now dispose of the case on its merits.

The plaintiff suffered a hernia attempting to pull in the side of a steel coal car by the use of a turnbuckle while employed by the defendant and sued to recover damages for such injury. At the conclusion of the plaintiff's case in chief the trial court directed a verdict for the defendant on the ground the plaintiff had not made out a case of negligence against the defendant which would entitle him to have the case submitted to the jury. This appeal followed.

The plaintiff was a car repairer working in the shops of the defendant in Albuquerque, New Mexico where he and another car repair man were directed by their foreman to get a burner or heater to be used in heating the sides of a coal car so they could be pulled in and straightened by the plaintiff with the use of a turnbuckle. They were told they would find a turnbuckle at a certain crossing. They procured the burner at the place it was stored and found a turnbuckle at the place indicated, and took them to their designated place of work.

The pattern of work required them to remove the wooden parts from the inside of the car and then to place the turnbuckle in proper position. The one who was to use the burner would get on the ground and heat the steel side. When he deemed it sufficiently hot to be pulled he would call to the workers inside of the car to apply force by turning the handle of the turnbuckle in order to secure leverage and thereby straighten the side of the car. Only one side would be straightened at a time. According to the testimony of the plaintiff, on his first attempt to make the turns he was pulling hard on the handle and felt a sudden, severe pain. He quit work and went to the office to report his injury. The next day the foreman sent him to the hospital where he was examined by a physician who found him suffering from a hernia. There does not appear to be any dispute that the plaintiff suffered an injury which caused a hernia as a result of his turning of the turnbuckle. Certainly there was substantial evidence to sustain a finding to that effect.

The plaintiff claims he was injured due to the negligence of the defendant, first, in failing to furnish proper tools with which to do the work assigned, and second, in failing to furnish sufficient help.

This action was brought under what is commonly known as the Federal Employers' Liability Act, Sec. 51 et seq., 45 U.S.C.A., which provides in part as follows:

'Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works boats, wharves, or other equipment. * * *'

By the 1939 amendment to the Act the defense of assumption of risk was abolished, and contributory negligence does not defeat an action but only reduces the award in the proportion such negligence contributes to the injury.

It must be remembered a defendant under this statute is liable in damages for an injury resulting in whole or in part from its negligence. In Rogers v. Missouri Pacific Railroad Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499, a statement made a number of times previously was repeated in the following language:

'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. * * *'

In Urie v. Thompson, 1949, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, it is stated that what constitutes negligence under the Federal Employers' Liability Act is a federal question, not varying in accordance with differing conceptions of negligence applicable under state and local laws for other purposes, and that federal decisional law formulating and applying the concept governs.

The decisions of the United States Supreme Court, construing the statute in question and passing on cases founded thereon have been so consistent since the 1939 amendment that there is and can be no real dispute as to the law in these cases. It is clear that Court will not tolerate any application of the doctrine of assumed risk, regardless of the manner in which it may be applied or what it may be named. Neither will it tolerate any usurpation by a court of the fact-finding prerogatives of the jury.

Several witnesses testified that the burner was not large enough, and therefore did not heat sufficient space on the side of the car, and also, that the handle with which the turnbuckle was equipped was too short. In addition, the plaintiff testified that the turnbuckle was rusty and therefore harder to turn.

All the witnesses for the plaintiff testified that the work to which they were assigned was at least a three-man job, one to operate the burner and the other two to turn the handle of the turnbuckle. That in turning the handle, sometimes the men were on opposite sides and at other times on the same side. In the latter instance each would be turning it, while if they were on opposite sides at times only one man would be turning the handle from his side and they would alternate in such operation. At other times both would be applying force.

A number of witnesses, who were experienced car repair men and who had worked many years for the defendant, testified they had never before seen or known of the job in question being done by two men. The plaintiff attempted to prove by some of these witnesses it would be dangerous for only one man to be turning the turnbuckle (the burner being required to stay outside on the ground) but this testimony was excluded on the objection of the defendant. However, two witnesses did testify without objection that such would be dangerous, and one went so far as to say because of the danger he would refuse to work at such a job if only two men were assigned to the work.

In Southern Railway Co. v. Welch, 6 Cir., 1957, 247 F.2d 340, we find a case with very similar facts. There the plaintiff's work was to smooth off sharp burrs from the end of reclaimed rails by grinding them with an emery wheel. About 200 rails were ground in one day, each rail weighing approximately 1,600 pounds. The plaintiff was compelled to pull the rails partly crosswise of certain rollers supported by tables three feet high upon which the rails were carried to be cut and ground. As a result of an injury to his back during the pulling operation, plaintiff ruptured a disc between the fourth and fifth vertebrae.

On appeal the defendant urged that no negligence on its part was shown. As to the principal negligence alleged, which was that defendant failed to furnish adequate assistance, the defendant contended the plaintiff was performing 'what was always a one-man job', but the court said there was substantial evidence that upon the day of the injury circumstances of particular difficulty existed; that the grit, grime, tar and dirt on the rails were excessive and required additional force to pull the rails into proper position. Under such conditions it had been the practice to assign an extra man to assist on the job and this without request.

The court held that upon this evidence and other issues of fact in the...