Conner v. UNION PACIFIC RAILROAD COMPANY

• Decision Date: 17 February 1955
• Docket Number: No. 14315.,14315.
• Citation: 219 F.2d 799
• Parties: Horton CONNER, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

219 F.2d 799 (1955)

Horton CONNER, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.

No. 14315.

United States Court of Appeals, Ninth Circuit.

February 17, 1955.

Raoul D. Magana, Victor E. Kaplan, Los Angeles, Cal., for appellant.

E. E. Bennett, Edward C. Renwick, Malcolm Davis, Los Angeles, Cal., for appellee.

Before STEPHENS, FEE, and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

On March 13, 1953, plaintiff-appellant was one of a two man team repairing freight cars in the Union Pacific Railroad Company shops at its east yard near Los Angeles. At that time he was a regular employee of the company. On the particular morning the duties of the two required that they do some welding which involved the use of heavy duty electrical equipment. Upon completion of one welding job the plaintiff went alone to a large pole to disengage a rubber cable leading from a socket on the pole, the cable containing the electric wires which ran from the socket to the welding machine. The main length of the cable is the size of an ordinary garden hose. On the end of the cable making the connection at the socket, the cable expands into sort of a bulbous object about four inches in diameter. This bulbous end or plug fits into the socket on the pole. The underlying mechanical principle of the heavy industrial socket and plug used here is not unlike the ordinary household wall socket and appliance cord with plug.

While disengaging the cable with its plug from the socket on the pole, Conner claims that he sustained a back injury and that the injury was due to the socket being maintained on the pole in a negligent condition by Union Pacific. Conner sued the railroad company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The alleged negligence will be alluded to later.

The cable and plug, the socket, and a switchbox assembly immediately above the socket are in evidence, all attached to a section of a pole or post. The parties have only partially described in words the apparatus here involved.

Although repetitious, it may be said the major component parts (from top to bottom) would be as follows:

1. The switchbox with switch apparatus inside the box.

2. The casting containing the socket immediately below and connected to the switchbox.

3. The bulbous hard rubber covered plug which is securely attached to the garden hose-like cable.¹

The switchbox is rectangular in shape and inside is the heavy duty switch fastened to the back of the box. The switchbox has a door which takes up almost the whole face of the box. The door when opened swings upward. Inside the door of the box is a removable panel front which when screwed in place leaves only the switch handle within view. Otherwise, this front panel covers everything inside the box.

At the metal casting below the switchbox, called the socket, we find the critical portion of this case. This socket is bent pear-shaped, the neck of the pear being connected to the bottom of the switchbox. The lower or wider end of the bent pear bends down and away from the pole at about a 45 degree angle. Into this lower end of the metal socket the connection is made with plug and attached cable.

The pole being round, a board is affixed to the pole and the switchbox is fastened to the board. The narrow part or the neck of the pear-shaped socket is flat on the back and has two wing-like projections. By a screw through each wing of the socket, the socket is affixed to a board immediately below the board on which the switchbox rests. (On the day in question, there is no suggestion that the backboards did not remain firm to the pole. Likewise, it may be assumed that the switchbox remained firm against its backboard.) A connection between the switchbox and the pear-shaped socket casting is made by means of a threaded pipe or nipple. Around this nipple between the socket casting and the bottom shelf of the switchbox are two locknuts, one above the other. Around the nipple which protrudes less than an inch into the switchbox is a locknut, and above the locknut, another nut called a collar. Properly set up, the pear-shaped casting is tight against its backboard. The locknuts and collar pull the casting firmly up against the bottom of the switchbox.

As to plaintiff's injuries, the parties are not in agreement as to how bad his back now is, or has been. Union Pacific does not admit the plaintiff's disconnecting the socket had anything to do with the serious condition of plaintiff's back, or the pain he has suffered.

It may be that the plug end on the cable leading to the welder can be pulled straight out from the stationary metal portion of the socket, but it seems quite natural and much easier to wiggle the plug out, not unlike pulling a household plug out of a wall socket.

By his complaint plaintiff specifically charges only that the wings of the metal socket pulled over the screws of the backboard. And the reason for this was negligence in the maintenance of the metal socket with its attendant screws. No other negligence is charged.

Plaintiff testified that while disengaging the plug from the metal encased socket "just everything gave away" and instantaneously he had a sharp pain in his back. Other than that the plug disengaged from the socket, he only particularized that the wings of the socket came over the heads of the screws holding it to the backboard. There was corroboration of his contention that the company had fastened or maintained the socket to the board with too small or defective, rusty screws. No one directly or positively testified, and it was not pleaded, that the connection between the socket and the switchbox was loose on the day in...