Daulton v. Southern Pacific Company, 14924.

• Decision Date: 15 October 1956
• Docket Number: No. 14924.,14924.
• Citation: 237 F.2d 710
• Parties: Mary Edith DAULTON, Administratrix of the Estate of Donald LeRoy Daulton, deceased, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 710 (1956)

Mary Edith DAULTON, Administratrix of the Estate of Donald LeRoy Daulton, deceased, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee.

No. 14924.

United States Court of Appeals Ninth Circuit.

October 15, 1956.

D. W. Brobst, Hildebrand, Bills & McLeod, Oakland, Cal., for appellant.

Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, Joseph Larkin, Portland, Or., for appellee.

Before MATHEWS, BONE and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Donald LeRoy Daulton, a Southern Pacific brakeman of the Shasta division of the company, was killed on October 6, 1952, in the course of his employment near the Wocus siding, which is located about three miles from Klamath Falls, Oregon.

In the moments immediately preceding his death he was acting as the "head" or "front end" brakeman on a five car work train. The train was moving northerly on a main line track to get on a siding and out of the way of two freight trains that were scheduled to pass each other at Wocus. As the train moved slowly forward at perhaps four miles an hour Daulton was standing on the right hand footboard (engineer's side).¹ Before entering the siding, the train was to stop for Daulton to manually throw the switch to permit entry into the siding.

Obviously, from the testimony of various trainmen, it would have been better practice for Daulton to have ridden in the cab of the engine, but on the other hand, he may have been riding the footboard to watch for tools possibly left on the track by workers and to warn the workers, as he saw them, about the other trains which would be along soon.

There were no eyewitnesses. No one knows positively what caused Daulton to fall off the footboard and to be dragged between the rails and killed. It is not suggested that it was due to a sudden lurch forward or a quick stop of the engine. As the train moved forward, Daulton was at first visible to the engineer. Then he did not observe Daulton out on the footboard for a distance of "about 40 car lengths" or about 1,400 feet. Being almost at the juncture to the sidetrack, and seeing the switch for the sidetrack receiving no attention and that the block signal near the switch had not changed over, the engineer stopped the train. Now, at this point, all of the train crew knew something was wrong. The testimony indicates the train probably could have been stopped within ten feet. It is not clear whether the engineer lost sight of Daulton because he, the engineer, was primarily watching a signal or because Daulton was no longer on the footboard to be seen, but somewhere under the engine or tender. At least for much of the way, the jury could have found that Daulton could not have been seen on the footboard — because he wasn't there.

Daulton's Administratrix on two theories brought her action against Southern Pacific for his death. The first theory was under the so-called Boiler Act² and claimed that the death was due to a protruding bolt on the right hand footboard which had not been countersunk, as good practice would require. In such an event contributory negligence of the decedent would not have been a defense or result in any diminution of damages.

The other claim was under the Federal Employers' Liability Act.³ This claim asserted negligent operation of the train caused the death. Absence of negligence by the defendant and sole negligence and contributory negligence of the decedent were pleaded by Southern Pacific. During the trial a pre-trial order was completed, setting forth the contentions of the parties. It concluded with defining the issues as follows:

"I.

"Was defendant\'s engine improper or unsafe in any of the particulars charged and, if so, was such a proximate cause of the death of the deceased?

II.

"Was the defendant guilty of negligence in any particular as charged and, if so, was such a proximate cause of the death of the deceased?

III.

"What is the amount of plaintiff\'s damage?"

The case was tried to a jury. In view of the usual verdict returned for the plaintiff in cases of this type, it is surprising that the jury in this case did return a verdict for the railroad company. But it did. Now the plaintiff appeals.

The plaintiff-appellant attacks in several ways the instructions given on contributory negligence. In proper time, the instructions on this subject were excepted to by the plaintiff's counsel in words as follows:

"There is only one, your Honor. That was the question of the instruction on contributory negligence. I believe under the circumstances, where the law conclusively presumes that the plaintiff was in the exercise of ordinary care, there being no evidence in the record to the contrary or that he did any act that could be construed as an act of contributory negligence, the instruction should not have been given."

Here both sides were represented by lawyers, experts in the field. It is particularly just⁴ to apply Rule 51 of the Federal Rules of Procedure, 28 U.S.C.A. here and to hold that the only objection this court can consider in appellant's group of objections concerning contributory negligence is the one which asserts it was not appropriate to instruct the jury in the field at all because "the law conclusively presumes that the plaintiff was in the exercise of ordinary care, there being no evidence in the record to the contrary or that he did any act that could be construed as an act of contributory negligence."

Southern Pacific answers that the objection is of no moment anyway because a verdict by the jury in its favor necessarily means the company was guilty of no negligence; therefore, it matters not a whit whether any instruction was given on the subject or what the instruction said. That is, to say, in Federal Employers' Liability cases contributory negligence mitigates damages by a certain percentage or fraction. If the defendant caused none of the damage, there is no legal damage. The reduction of nothing by a fraction is nothing. Therefore, error, if any, was harmless. So the argument goes.

However, a better ground to dispose of the point is to say that the objection as made and when made was not a good one. Of course, one starts with the presumption, in the absence of evidence, that everyone was...