Clinard v. Southern Pac. Co.

• Decision Date: 29 June 1970
• Docket Number: No. 8748,8748
• Citation: Clinard v. Southern Pac. Co., 475 P.2d 321, 82 N.M. 55, 1970 NMSC 93 (N.M. 1970)
• Parties: Frank J. CLINARD, Plaintiff-Appellee, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 321

475 P.2d 321

82 N.M. 55

Frank J. CLINARD, Plaintiff-Appellee, v.SOUTHERN PACIFIC COMPANY, a corporation, Defendant-Appellant.

No. 8748.

Supreme Court of New Mexico.

June 29, 1970.

Rehearing Denied Oct. 15, 1970.

White, Gilbert, Koch & Kelly, Santa Fe, for defendant-appellant.

Arturo G. Ortega, William E. Snead, Albuquerque, for plaintiff-appellee.

OPINION

McKENNA, Justice.

This is an action for damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained by Clinard while an employee of the appellant railroad.The amount awarded was $75,628.00 but this was reduced by the jury to $60,503.00 for it found that Clinard was contributorily negligent by 20%.Judgment was entered for this reduced sum.The railroad appeals for several reasons.

On February 15, 1965, a cold and bitter, snowy morning, Clinard, a gang foreman, and his three-man crew reported for work.The day's assignment was routine maintenance work on the railroad's track east of Vaughn, New Mexico.His normal crew was the three men, but the railroad requested Clinard to loan his third man to another crew which could not work without a look-out man to watch for oncoming trains.Under the circumstances, this was expected of Clinard by the railroad.No other man was available for this other crew.

Clinard's crew, short one man, then went to work on the track.One of Clinard's duties was to watch for oncoming trains, but if he was busy with other duties, it would have been the duty of the third man to watch.The work was lifting sections of rail with a hydraulic jack and then tamping the bed ballast with a jack hammer to level the track.

During the course of the morning's work, the air compressor was not functioning properly.His men had raised a joint of the track with the hydraulic jack and they were tamping ballast under it with their jack hammers but the balky air compressor prevented the jack hammer from operating efficiently.Clinard then left the track site where his two-man crew was busily engaged in their work.As we have observed, the missing man would then have been the look-out.

Before leaving, Clinard testified, he told his two men to 'Watch out for trains.'This testimony was admitted over the objection of the railroad.

While Clinard was working on the balky compressor, he heard a train whistle.He was not expecting a train to arrive at that time.He looked up, saw the train, ran from the compressor up the embankment toward the track where the two men were working with their jack hammers, hollering at them in an effort to warn.The men, working oblivious of their danger, apparently did not hear for they were struck by the train and instantly killed.Their deaths, however, are not the subject of this dispute.

As Clinard was running toward the work site, the train passed over the track, the hydraulic jack was expelled and propelled, striking Clinard, causing the injuries for which $75,628.00 was awarded.

At the time of the accident, Clinard was 64 years of age, a little over a year from retirement age.He suffered fractures of both bones of the right arm and a hairline fracture of the pelvis.The pelvis did heal satisfactorily but the arm eventually required an open reduction and a bone graft.He did not gain full use of his arm and the affected shoulder.There was evidence submitted of some considerable pain and suffering.There was also some back trouble, but Clinard had complained of back trouble for some time prior to the accident.There was some evidence that the injuries precipitated his retirement prior to his contemplated plans.Clinard did not return to his railroad job and retired at 65.

The railroad's first claim is that there was no evidence of any negligence on its part that in any way caused or contributed to the accident.It urges that its motion for a directed verdict should have been granted.Under F.E.L.A. cases, the carrier is liable to an injured employee for the injury resulting in whole or in part from the negligence or carelessness of its officers, agents or employees.The slightest negligence is sufficient if it played any part or in any way caused or contributed to the injury.Chavez v. Atchison, Topeka and Santa Fe Railway Co., 77 N.M. 346, 423 P.2d 34(1967).The negligence of the employer can be determined by viewing his conduct as a whole.Blair v. B. & O. Railroad Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490(1945).If this test is met, it is then a matter for the jury even if there be contributory negligence.Under the Act, supra, the award is to be proportionately reduced by the percentage of contributory negligence found. 45 U.S.C.A. § 53.

Our appraisal is that the plaintiff met this test.The evidence showed that Clinard proceeded to work with a short crew and that this was expected of him by the railroad, for the railroad's benefit.If the third man had been with him, there would have been a look-out to notice the approaching train in time to warn the men and to remove the hydraulic jack which imperiled the safety of the train's passage.Clinard ran to warn the men, thereby placing himself in the line of the propelled jack.In Chavez, supra, we found negligence where the railroad failed to provide sufficient help to perform a job.Whether or not there was negligence on the part of the two-man crew in not being on the alert, is not before us; however, in F.E.L.A. cases the negligence of fellow employees does not bar a right of an employee to recover damages.See cases collected under Note 497,45 U.S.C.A. § 51.

The second argument of the railroad is that Clinard's statement telling his crew to 'Watch out for trains' was improperly admitted into evidence.Clinard stated he so warned his crew when he left the job site to work on the air compressor.It was some ten minutes later that he heard the whistle of the oncoming train.The railroad's position is that the statement was hearsay and self-serving.Clinard argues that it was admissible under the res gestae doctrine and as a verbal act expressing a mental feeling or a natural reflex which is material and relevant to a pertinent issue.Both sides concede the materiality of the statement.It bears on the possible negligence of the railroad's employees in failing to remove the jack and the issue of contributory negligence of Clinard.

That it may be self-serving is not controlling if the statement falls within the guidelines of res gestae.Bass v. Muenchow, 259 Iowa 1010, 146 N.W.2d 923(1966).But its self-serving character is a factor which bears on, and is to be considered in determining the trustworthiness attributed to spontaneous exclamations.Roland v. Beckham, 408 S.W.2d 628(Ky.App.1966).See cases collected in the Annot., at 53 A.L.R.2d 1245.In Nichols v. Sefcik, 66 N.M. 449, 455, 349 P.2d 678(1960), and in Brown v. General Insurance Company of America, 70 N.M. 46, 52, 369 P.2d 968(1962), we refused the admission of purely self-serving statements, commenting on the obvious opportunity there presented to manufacture and fabricate the evidence excluded.While not determinative, there is the factor that the crew members to whom the claimed statement was made are dead and there is no one but the plaintiff to testify.This, of course, is two-edged for there is no person for Clinard to go to for corroboration, but lack of corroboration does bear on the element of trustworthiness.SeeFischer v. Chicago & N.W. Ry. Co., 193 Minn. 73, 258 N.W. 4(1934).

In Jameson v. First Savings Bank & Trust Co. of Albuquerque, 40 N.M. 133, 140, 55 P.2d 743(1936), we discussed the res gestae doctrine.The difficulty of res gestae is always the same: its application to a particular situation and, as observed in Jameson, at page 142, the particular facts of each case must control rather than rigid rules of exclusion which may keep out the truth.In Jameson, supra, we quoted liberally from Roh v. Opocensky, 126 Neb. 518, 253 N.W. 680, 681(1934), which discussed expressions of bodily or mental feelings or natural reflexes and verbal acts.

The injuries here occurred some ten minutes after Clinard left the job site.While time alone may not be the sole test, it is questionable that the claimed statement is so linked with the later accident in such continuity of action as to be a part of the accident.Nor was the statement made under circumstances of stress as would remove it from the doubtful character generally present in self-serving statements.Clinard was not expecting any train for some time; he left to perform a routine task while routine work progressed.

' Spontaneity,' stated to be the most influential factor in determining admissibility under the doctrine of res gestae, is a product of stress.Roland v. Beckham, supra; Annot., 53 A.L.R.2d 1245, supra.Absent stress we question its 'spontaneity' as the law uses that term and emphasize the self-serving nature of the statement.CompareState v. Apodaca, 80 N.M. 244, 453 P.2d 764(Ct.App.1969).

Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 239 P. 709, at 716, 41 A.L.R 1027(1925), tends to support the arguments for admissibility.There a witness testified as to the statements of the deceased who was struck by a car.A few minutes prior to the accident, the witness stated that the deceased had kept warning his companion witness to keep off the paved highway as 'somebody (might) hit you.'The court found such testimony admissible as a verbal act and tending to disclose the deceased's mental feeling that he was aware of the dangers of walking over a road at nighttime and was exercising due care.However, and we note again that the testimony in our case came from Clinard rather than from a witness, we believe Hatzakorzian, supra, presents a much tighter link in the continuity of action.

Considering all the factors present, we do not believe that Clinard met his burden of establishing its admissibility.We hold the admission of the testimony...