Deere v. Southern Pac. Co.

• Decision Date: 18 November 1941
• Docket Number: No. 9706.,9706.
• Citation: 123 F.2d 438
• Parties: DEERE v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F.2d 438 (1941)

DEERE v. SOUTHERN PAC. CO.

No. 9706.

Circuit Court of Appeals, Ninth Circuit.

November 18, 1941.

Frank C. Hanley, of Portland, Or., for appellant.

Alfred A. Hampson, James C. Dezendorf, Clarence J. Young, and Richard B. Maxwell, all of Portland, Or., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Appellant, Esther P. Deere, as the administratrix of the estate of Amos J. Deere, brought this action in the United States District Court for the District of Oregon to recover damages from appellee, Southern Pacific Company, for the death of her intestate, for the benefit of his minor children and herself as widow. Liability is sought to be imposed upon appellee, a Kentucky corporation, engaged in the operation of a railroad in interstate commerce, through the provisions of the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. §§ 51-59.

The following outline of the case is taken from a statement of facts agreed upon by counsel in a pre-trial proceeding:

Amos J. Deere, as part of his duties as a signalman in defendant's employ, was engaged in maintaining the block-signal system on a of line of defendant's railroad which is located through Monterey county, California, and in the performance of his duties operated a motorcar weighing 550 pounds, furnished him by defendant. On the afternoon of March 21, 1939, a dry, clear day, he was traveling on his motorcar in a northerly direction along the main track of the railroad. At the same time defendant was operating in a southerly direction on the same track, at a speed of about thirty-five miles per hour, a certain freight train consisting of an engine, seventy-two empty cars, five loaded cars, and a caboose. From the time the train and Deere were within a mile to a half mile of each other there was no obstruction to vision between them. The whistle on defendant's locomotive was sounded, and after some delay Deere stopped the speeder and commenced to remove it from the track. Before the speeder was entirely removed from the track, however, a collision occurred between the train, the speeder, and Deere, in which collision he was so severely injured that he died instantly.

The plaintiff charged defendant with actionable negligence: (1) because it out decedent to work on the motorcar without stationing sufficient help thereon to assist him in removing the car from the track, which defendant knew was necessary in order to permit approaching trains to pass; (2) because its engineer failed to avail himself of the last clear chance to avoid the accident. The case was tried to the court sitting with a jury. When the plaintiff's and defendant's evidence had been received, the trial judge sustained a motion of defendant for a directed verdict on the ground that plaintiff could not recover because her intestate had assumed the risk of injury and death as a matter of law. From that ruling the plaintiff brings this appeal, contending that there was sufficient evidence to warrant submission of the case to the jury.

"The test as to whether a directed verdict should be granted, is not whether the evidence brings conviction in the mind of the trial judge; it is whether or not the evidence to support a directed verdict as requested, was so conclusive that the trial court in the exercise of a sound judicial discretion should not sustain a verdict for the opposing party." O'Brien, Manual of Federal Appellate Procedure, 3d Ed., p. 15. Respecting the power of the trial court to grant or deny a motion for directed verdict the Supreme Court of the United States stated in Gunning v. Cooley, 281 U.S. 90, 91, 50 S.Ct. 231, 233, 74 L.Ed. 720, as follows:

"`When on the trial of the issues of fact in an action at law before a Federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set side, the court may and should direct a verdict for the other party.' Slocum v. New York Life Insurance Co., 228 U.S. 364, 369, 33 S.Ct. 523, 525, 57 L.Ed. 879 Ann.Cas.1914D, 1029.

"A mere scintilla of evidence is not enough to require the submission of an issue to the jury. * * *"

The particulars surrounding the occurrence of the accident, as revealed at the trial were:

The train was rounding a big sweeping curve about two miles north of Bradley, California, when the engineer, Fredrick E. Lamphier, first saw Mr. Deere, who was then approaching the train on a motorcar at a distance of about half a mile. Immediately Lamphier sounded a warning with the engine's whistle. But Deere, seeming to pay no attention, continued moving toward the approaching train. When the train was about a quarter of a mile from Deere, the engineer again blew the whistle and at the same time made a "service" application of the air brakes, which tended to slow the train down gradually and which did reduce the speed to about eighteen or twenty miles per hour. When this second warning blast from the whistle was given, the signalman stopped the speeder and endeavored to remove it from the track. He had removed all but one rear wheel, when the engineer, believing, according to his testimony, that the car was stuck, applied the emergency brakes and simultaneously pulled the whistle cord, causing the whistle to blow continuously. The intervening distance between Deere and the locomotive was then about 500 feet. When the engineer's view was cut off by the locomotive (at a distance of about 150 feet), the decedent was still struggling with the speeder. He did not get out of the way, and he and the motorcar were struck by the train, which was moving at the rate of about fifteen miles per hour at the moment of impact. Before it was brought to a complete halt the train traveled another three or four hundred feet. Deere's body was found back on the track under one of the boxcars.

The evidence shows that the accident occurred at a landing, a flat place built up along side the track and on a level with the trackbed, which landing is located 140 feet south of a semaphore designated as signal 1917. That signal indicates to one who is south thereof the approach of any train within a distance extending 8,700 feet to the north of said signal. The semaphore can be seen continuously from the south, commencing at a point 2,138 feet away, and from the same point a train from the north can be seen from the time it is 3,820 feet distant, as it rounds the big sweeping curve, heretofore mentioned, which is just north of signal 1917. It was further revealed by the evidence that the deceased did not have to approach so near to the onrushing train but could have removed the motorcar at any place along the track for a distance of at least one-quarter of a mile south of the landing.

There was a showing of neglect on the part of Deere in that on the morning of the day of the accident he failed to procure, in accordance with instructions, a line-up of the trains that were to be moving on the tracks in his territory on that particular day.

With regard to the first charge of negligence, we agree with appellant that when failure to provide sufficient help results in injury to an employee, there exists a ground of negligence which is recognized under the Federal Employers' Liability Act (Chesapeake & Ohio Ry. Co. v. Winder, 4 Cir., 23 F.2d 794), but to permit recovery in such case it must be shown that such failure was the proximate cause of the accident. Marshall v. Chicago, etc., R. Co., 131 Minn. 392, 155 N.W. 208; Strunks v. Payne, 184 N.C. 582, 114 S.E. 840. To recover plaintiff is required to prove not only that the railroad was negligent, but that the injury resulted proximately from that negligence. Healey v. New York, O. & W. R. Co., 2 Cir., 79 F.2d 542. Here, the plaintiff contends that the speeder was too heavy for decedent to handle properly. But if it be conceded, arguendo, that defendant did not provide sufficient help, yet there is no showing whatever of a direct causal connection between that omission and the death of plaintiff's decedent. His death was not owing directly to the act of removing the speeder, but was due proximately to his failure to step aside from the path of the train, the approach of which was fully known to him, as is evidenced by the fact that he had begun to remove the speeder from the way of the train. He was free to handle his own movements; there was no superior's order requiring him to stay with the car at the risk of his life. Under these circumstances reasonable men must agree that the accident was not brought about through any failure to furnish sufficient help, and there is therefore no question for the jury on this point. Moreover, all of the evidence introduced relative to this question was to the effect that there was no need for providing the decedent with help. It was shown that it has always been the practice of signal maintainers to operate their cars alone, which cars are referred to as "small oneman inspection cars". Furthermore, since 1928 the decedent had handled the same car along the same stretch of track, which was twenty-two miles long, and during that time it was part of his duties daily to get out of the way of every train which came along. Deere's immediate superior, a signal supervisor, testified, as likewise did the engineer, that he had seen Deere remove the same car from the track "many times". From all these circumstances it can be said that deceased voluntarily assumed by his contract of employment all obvious and ordinary risks involved, among which there would unquestionably be those openly and directly connected with the act of removal of the motorcar from the track, an operation known by the deceased to be a part of his duties. Delaware, etc., R. Co. v. Koske, 279 U.S. 7, 11, 49 S.Ct. 202, 73 L.Ed. 578. And in any...