Bruner v. McCarthy

Citation105 Utah 399,142 P.2d 649
Decision Date25 October 1943
Docket Number6566
CourtSupreme Court of Utah
PartiesBRUNER v. McCARTHY et al

Appeal from District Court, Third District, Salt Lake County; George A. Faust, Judge.

Action under the Federal Employers' Liability Act for personal injuries by E. E. Bruner against Wilson McCarthy and Henry Swan, trustees of the Denver & Rio Grande Western Railroad Company, and the Denver & Rio Grande Western Railroad Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

Farnsworth & Van Cott, E. C. Jensen, and Grant Bagley, all of Salt Lake City, for appellants.

Rawlings Wallace & Black and C. E. Henderson, all of Salt Lake City for respondent.

WOLFE Chief Justice. LARSON, Justice, concurring in part dissenting in part. MOFFAT, Justice, dissenting.

OPINION

WOLFE, Chief Justice.

E. E. Bruner, plaintiff and respondent, who was employed as a hostler's helper on the railroad of the defendants, was injured in the course of his employment. He commenced this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, to recover damages from his employers for these injuries. The trial resulted in a verdict and judgment in favor of the plaintiff. The defendants appeal.

All assignments of error, except one relating to the admission in evidence of Exhibit G, relate to various instructions given to the jury. By several of the assignments the defendants urge that the jury was not properly instructed on the issue of contributory negligence, which defense was pleaded by the defendants. The Federal Employers' Liability Act provides that:

"* * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 45 U.S.C.A. § 53.

It is contended that the various instructions did not correctly submit this factor to the jury. The plaintiff counters that there was no evidence of contributory negligence and that no such instructions were required. Our first question then is whether there was sufficient evidence of contributory negligence to require the giving of an instruction relating thereto.

The evidence adduced is not in dispute. Prior to the accident the plaintiff had had several years' experience both as a hostler and hostler's helper. On the date of the accident, December 1, 1941, he was working for the defendants as a hostler's helper. He was assigned to aid and assist one Colosimo, a hostler, with whom the plaintiff had not previously worked. Colosimo was in charge and the plaintiff was to perform his work as directed by Colosimo. On this railroad the hostler and his helper serviced locomotives and delivered them from the roundhouse to the railroad crews.

On December 1, 1941, the plaintiff came on shift with Colosimo at 11 p. m. After performing various other duties, they brought Engine No. 1149 out of the roundhouse to the cinder pit. Here employees known as "fire knockers" cleaned the clinkers out of the fire. While they were at the cinder pit, another hostler brought Engine 1182 from the round-house and coupled it to Engine 1149. Both engines were facing east. At the cinder pit Colosimo and the plaintiff discussed the future movements of the engines and the work to be done. Engine 1149 did not need sand. It was decided that both engines were to be backed to the sand chute where the plaintiff would take sand on 1182. Then both engines were to be backed to the coal chute. Although it was plaintiff's duty to put coal in the tender of both engines, Colosimo volunteered to coal Engine 1149 and told plaintiff to coal Engine 1182 after he had sanded it. Pursuant to this conversation plaintiff boarded Engine 1182 and Colosimo boarded 1149. Plaintiff gave Colosimo a back up signal and Colosimo testified that he answered with a whistle "back up" signal before starting the engine. By using the power on Engine 1149, both engines were backed toward the sand tower and upon a signal from the plaintiff, 1182 was stopped so that it could be sanded. After plaintiff sanded Engine 1182 he returned to the running board on the side of the engine and gave Colosimo the signal to back the engines toward the coal chute. Engine 1149 which was to be coaled by Colosimo was first spotted at the coal chute--this time it was stopped without a signal from the plaintiff. Colosimo coaled Engine 1149, taking about three or four minutes for the job. While Colosimo coaled Engine 1149, plaintiff, who was still in the cab of Engine 1182, checked the fire and turned off the blower. He then got off the engine on the north side (the side away from the coal chute) and walked to the rear of the engine toward the tender. In order for the plaintiff to take coal on Engine 1182 it was necessary for him to be on top of the tender. There were several methods by which he could have climbed there. At the point where he was standing at the rear of the north side of the tender there was no ladder leading to the top of the tender. However, immediately across from this point on the rear of the south side of the tender there was such a ladder. To reach this ladder there were at least two direct methods he could have used. One would have been to cross over the pilot (a flat platform on the front of the engine) on Engine 1149. The other, the way he chose to go, was to climb over the draw bar between the two engines which were coupled together. While he was climbing over this draw bar, Colosimo, without warning or without knowing where the plaintiff was or receiving a signal, started the engines. Plaintiff was thrown beneath the wheels of one engine and his left leg was cut off at a point below the knee.

The defendants claim that the plaintiff was guilty of contributory negligence in that of the several ways by which he could have climbed to the top of the tender, he chose the only dangerous one; that the way chosen was not customarily used and was highly dangerous. Defendants also contend that the plaintiff, who was to follow Colosimo's directions, had been ordered by Colosimo to stay on Engine 1182; that if he had obeyed this order he would not have been injured; and that Colosimo had a right to assume that the plaintiff would obey this order. One difficulty with this position is that the record does not support it. There is no testimony tending to show that it was more dangerous to mount the tender in the manner chosen by the plaintiff. Defendants apparently rely on Exhibit 3, which is a picture of these two engines coupled together. This picture shows the draw bar and other items relating to the hand holds, etc., on the route which the plaintiff chose. However, we cannot from this picture conclude that the manner chosen was highly dangerous and a method not customarily used. The evidence merely shows that there were several ways by which the plaintiff could have gotten on top of the tender. The manner in which he was to get there was left to his own judgment. The record does not show that the way he chose was the more dangerous way. Nor does the evidence show that Colosimo ordered the plaintiff to stay on Engine 1182. True, Colosimo did testify that "I just told him to stay on 1182. That is what I told him, just to stay on 1182, and I would take care of the 1149." But it is clear that what he meant by this was merely that plaintiff should confine his work to 1182 and Colosimo would take care of 1149; for in response to the question: "All you meant by that was that you would take care of 1149 and Bruner would take care of 1182?", Colosimo answered: "Yes, Sir." This interpretation of this statement is further borne out by the remainder of Colosimo's testimony.

We have then this situation: These two men, working together for the first time, were stopping and starting the train according to signals given by the plaintiff. The engines were stopped; Colosimo was putting coal in Engine 1149. It was the plaintiff's duty to get on top of the tender on Engine 1182. He chose a manner of getting there which is not shown by the evidence to be either unusual or dangerous. In fact the only evidence is that which he gave that he had often used this route and that it was a common practice among yardmen to do so. Colosimo, without giving a signal or without knowing where the plaintiff was, started the engines and threw the plaintiff to the tracks and under the wheels of one engine. The plaintiff was doing exactly what he was required to do in the performance of his duties, to wit, getting on top of the tender. While it may be, as defendants argue in their brief, that the manner chosen was highly dangerous, there is no evidence to show this. We must conclude that the record does not show contributory negligence.

Even if there were several means of reaching a point where plaintiff was required to be and one was more safe than the others but all were reasonably safe without movement of the engine and the plaintiff had a right to rely on the engineer and assume that he would not start the engine until he received a signal, we do not think the choice of the less safe route could be considered as having contributed to the accident when it was apparent that the unexpected jar caused by the engine's movement dislodged the plaintiff. Even had the latter chosen the safest route, a jar which he had a right not to expect, and in regard to such nonexpectation it could be presumed he would have regulated his holds and care of traversal, the dislodgment might have happened. This is a case where the parties were members of a working crew working on signals designed for the very safety of that work. Where the accident has been caused by the failure to give such signal the party working in a crew responsible for...

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  • Wilkerson v. Carthy
    • United States
    • U.S. Supreme Court
    • January 31, 1949
    ...Francisco R. Co., Mo. Sup., 182 S.W.2d 61, certiorari denied, 324 U.S. 843, 65 S.Ct. 676, 89 L.Ed. 1405. And cf. Bruner v. McCarthy, 105 Utah 399, 142 P.2d 649, certiorari dismissed for reasons stated, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547. Moreover, this Court stated some sixty years ag......
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    ...St. Louis-San Francisco R. Co., Mo.Sup., 182 S.W.2d 61, cert. denied, 324 U.S. 843, 65 S.Ct. 676, 89 L.Ed. 1405. And cf. Bruner v. McCarthy, 105 Utah 399, 142 P.2d 649, certiorari dismissed for reasons stated, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547. Moreover, this Court stated some sixty ......
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