Butz v. Union Pac. R. Co.

Decision Date19 June 1951
Docket NumberNo. 7441,7441
PartiesBUTZ, v. UNION PAC. R. CO.
CourtUtah Supreme Court

Rawlings, Wallace, Black, Roberts & Black, Salt Lake City, for appellant.

Bryan P. Leverich, M. J. Bronson, A. U. Miner, and Howard F. Coray, all of Salt Lake City, for respondent.

CROCKETT, Justice.

The plaintiff was injured while performing his duty as a switchman on the defendant railroad. He was was riding the side of a baggage car as it was being pushed on to the baggage tracks of the Denver Union Terminal Company when he struck his back against a baggage truck which was protruding so close to the tracks that it would not clear him. He brought this action under the Federal Employers's Liability Act, 45 U.S.C.A. Sec. 51 et seq. hereinafter referred to as the F. E. L. A., to recover damages for such injuries. After the presentation of the plaintiff's evidence, the trial court granted a nonsuit, from which ruling the plaintiff has appealed. His contention is that the evidence presented a jury question as to whether defendant was negligent in failing to use reasonable care in providing him a safe place in which to work.

As will hereinafter appear, the difficult question in this case is not whether the plaintiff was furnished a safe place in which to work, but whether defendant railroad should be held responsible for the conditions at the place of plaintiff's injury and the fact that the baggage trucks were misplaced too close to the tracks where plaintiff was required to perform his duties at the time he got hurt.

The Union Pacific and four other railroads use the facilities of the Denver Union Terminal Company, hereinafter for brevity called the Terminal Company, in connection with their railroad operations for the purpose of having the baggage cars loaded and unloaded by that company. Except for the arrangement to perform this service, there is no evidence that the Terminal Company is a subsidiary of or in any way connected with the Union Pacific. All of its facilities, including its tracks, loading platform and baggage trucks, are its own and are operated by its own employees. Its tracks where the injury occurred are called 'the outside baggage track'; they proceed westerly in its yard to and along the south side of its baggage loading platform. This is the conventional raised concrete platform alongside of the tracks just an inch or two higher than the top of the rails. The platform is far enough from the track (about 20 inches) to accommodate the overhang of the cars and on the platform about two feet further from the track, and parallel to it is painted a yellow clearance line. The baggage trucks while not in use are supposed to be parked back of this line, and if so parked there is sufficient clearance for men riding on the steps alongside these baggage cars.

In the performance of his duties on the day of his injuries, the plaintiff and the crew with whom he worked were moving a cut of three baggage cars westward on to the said outside baggage track for loading. His duty as a switchman at the time in question was as 'field man' which required him to ride the point or lead car of the cut as it was being pushed on to this baggage track alongide the loading platform referred to; to keep a lookout ahead for obstructions, impaired clearances, and to pass back any necessary signals to the engineer, as the cars were pushed on to this track. Ten baggage trucks were lined up along the platform, the easternmost one being about ten feet from the east end of it. There was a slight curve to the plaintiff's right as he approached the loading platform. This curve is sufficient so that from plaintiff's position as he approached the platform, the truck nearest him (the easternmost truck) obscured his view of the other trucks and their alignment until he was very close (within a few feet--but not exactly determinable) to the trucks. Two of the trucks had been left over the yellow line and thus foul of the clearance.

Plaintiff testified, 'When I got right around the curve to the straight track I was up against these trucks mostly. I didn't have enough time to jump off because there wasn't enough room in between there * * * so I tried to take my arms off to give a signal and just at that time I couldn't give a signal * * * then one of these trucks hit me on the elbow.' This truck in turn moved the next truck even closer to the rail and his back was struck and he was crushed between this truck and the car. By this time, other members of the crew saw what was happening and signalled a stop, which was made promptly. The plaintiff testified that all other members of the defendant's crew had properly performed their duties.

There is no evidence in the record as to who placed these trucks as they were positioned, nor the length of time they had been there. Usually, where equipment is handled and used exclusively by company employees on its property, there is a permissible inference that such equipment was placed in the position it is found by company employees, Baltimore & O. R. Co. v. Kast, 6 Cir., 299 F. 419; Illinois Central Railroad v. Skinner's, Adm'x, 177 Ky. 62, 197 S.W. 552, certiorari denied 246 U.S. 662, 663, 38 S.Ct. 333, 62 L.Ed. 928, and Clark v. Chicago & N. W. Ry. Co., 226 Minn. 375, 33 N.W.2d 484.

The defendant herein apparently does not disagree with the idea that a similar inference could properly be drawn in this case. In shifting blame from themselves for the misplacement of the trucks, they state in their brief, 'The evidence showed beyond any question that the defendant did not leave the trucks in the place where the accident occurred, but on the contrary the trucks were left there by employees of the Denver Union Terminal Company.' From the facts which were shown, that is most likely so. There was sufficient evidence from which the jury could properly be allowed to infer that the trucks were left afoul of the clearance by employees of the Terminal Company. Therefore, for the purpose of this opinion, we assume that the trucks were left afoul of the clearance by employees of the Terminal Company. That completes the factual picture.

It is settled beyond question that it is the duty of the employer to exercise reasonable care to furnish his employees a reasonably safe place to work and this includes situations where the employer sends his employee on the premises of another to perform his duties. 2 Sherman & Redfield on Negligence, Revised Edition, Sections 193 and 202; Albert Miller & Co. v. Wilkins, 7 Cir., 209 F. 582; Porter v. Terminal R. Ass'n of St. Louis, 327 Ill.App. 645, 65 N.E.2d 31, 33. In the latter case, the court referred to that duty and stated the proposition very clearly: '* * * and this duty follows the Master even though the servant is sent upon the premises of another to do his work. This duty is non-delegable and affirmative, and must be continuously fulfilled and positively performed', citing supporting authorities.

The defendant makes no contention that the place where plaintiff was injured was a safe place to work. The problem raised by the defendant and the one which gives us concern, as heretofore mentioned, is whether the defendant company is chargeable with responsibility for the condition there existing and for the placement of these trucks so as to impair the clearance and endanger the plaintiff.

There is abundant authority that a defendant employer is charged with responsibility for conditions of danger upon the property of others of which it either has actual knowledge or is charged with constructive knowledge because the hazard is of such a nature and has existed for sufficient time that in the exercise of reasonable care the employer should have discovered it. Numerous of the cases cited and discussed in the briefs are to that effect. In Schlueter v. East St. Louis Connecting Ry. Co., 316 Mo. 1266, 296 S.W. 105, 112, involving a defective condition of tracks of another railroad, the court held that if the defendant chose to use another railroad's tracks it was bound to see that they were reasonably safe for use by its employees. In Terminal R. Ass'n of St. Louis v. Fitzjohn, 8 Cir., 165 F.2d 473, 477, the plaintiff while riding the side of the car alongside of a ramp upon the property of the United States Government at its ordinance plant near St. Louis, Missouri, was knocked from the car by certain iron pipes extending from the ramp. It was contended that because the railroad company did not own or control, or have the right of control, over the ramp that it was not responsible. The court supported the judgment for the plaintiff and in doing so used the following language:

'That a master is bound to use reasonable care to provide a safe place in which his servant may work is now too well established to require citation of authority, and it can make no difference, so far as the servant is concerned, whether the master is using his own property or that of another.' (Emphasis added.)

and cites supporting authorities. For other cases so holding see Porter v. Terminal R. R. Ass'n, supra; Ellis v. Union Pacific R. Co., 147 Neb. 18, 22 N.W.2d 305, Id., 329 U.S. 649, 654, 67 S.Ct. 598, 91 L.Ed. 572,

Defendant maintains that there is no basis for either its actual or constructive knowledge of the condition of danger which existed here. The defendant is charged with knowledge of the physical conditions there existing including the tracks, platform, the baggage trucks and the method of their use and operation.

Reviewing plaintiff's situation: his duty required him to ride on the front sill step of the baggage car as it came into the baggage loading platform and his normal position was with his face to the car and his back to the platform. The curve in the track was such that, as plaintiff approached, the first truck blotted out view of the other trucks until he was so near to them that, according to his testimony, he could neither safely jump off...

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