DeWitt v. Western Pacific R. Co.

• Decision Date: 09 November 1983
• Docket Number: No. 82-4249,82-4249
• Citation: 719 F.2d 1448
• Parties: David DeWITT, Plaintiff-Appellee, v. The WESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant-Cross Claimant-Appellee, and The Flintkote Company, a corporation, d/b/a U.S. Lime, Defendant-Cross Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1448

719 F.2d 1448

David DeWITT, Plaintiff-Appellee, v. The WESTERN PACIFIC RAILROAD COMPANY, a corporation Defendant-Cross Claimant-Appellee and The Flintkote Company, a corporation, d/b/a U.S. Lime Defendant-Cross Defendant-Appellant.

No. 82-4249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 1983.

Decided Nov. 9, 1983.

Peter Davis, Crosby, Heafey, Roach & May, Siegfried Hesse, Oakland, Cal., for plaintiff-appellee.

David W. Gordon, Bronson, Bronson & McKinnon, San Francisco, Cal., for defendant-cross defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, SWYGERT, ^* and CANBY, Circuit Judges.

DUNIWAY, Circuit Judge:

This is an appeal from a judgment entered upon a jury verdict on claims arising from a railroad collision on a spur line near Salt Lake City, Utah. We affirm and assess attorney's fees and costs in favor of appellees.

I. The Facts.

David DeWitt, a conductor for the Western Pacific Railroad Co., was injured when the train in which he was riding one night collided with two loaded freight cars standing on a spur line leading to a plant owned by the Flintkote Co. Western Pacific served the plant under a "spur track" agreement, and the train was on its way to the plant to deliver empty cars and pick up loaded ones. The train's engines were shoving it down the spur so that the car at the end of it, not its engine, collided with the cars standing on the track. Flintkote employees had pushed those cars out of the plant, and they had rolled around one curve on the spur and come to rest hidden behind another.

DeWitt sued Western Pacific under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq., and Flintkote under a negligence theory. Defendants cross-claimed against each other for indemnity, claiming, respectively, diversity and pendent jurisdiction. Before trial, Western Pacific settled with DeWitt for $23,000. The parties stipulated to a trial before a magistrate. A jury found in special verdicts that neither Western Pacific nor DeWitt was negligent, and awarded DeWitt damages of $400,900. The magistrate entered an indemnity judgment for $86,433.52, including attorney's fees and costs, in favor of Western Pacific and against Flintkote.

II. Validity of Trial before the Magistrate.

Our decision in Pacemaker Diagnostic Clinic of America v. Instromedix, Inc., 9 Cir., 1983, 712 F.2d 1305 as amended Oct. 3, 1983, reh'g in banc granted Oct. 20, 1983, 718 F.2d 971 does not apply retroactively to this case. Id. at 1313 - 1314. Thus, we treat the decision of the magistrate as valid.

III. The Judgment for DeWitt.

Flintkote attacks (1) the jury's finding that DeWitt was not contributorily negligent, (2) the amount of damages awarded, and (3) the indemnity judgment.

A. Contributory negligence.

On review of the jury's finding of fact, we must affirm if the evidence reasonably supports the verdict. Beverage Distributors, Inc. v. Olympia Brewing Co., 9 Cir., 1971, 440 F.2d 21, 24.

Flintkote's "most significant instance of contributory negligence" on the part of DeWitt fades quickly in the light of the evidence. Flintkote notes that DeWitt knew that Flintkote sometimes left cars outside its plant on the spur line, had encountered cars there himself, and knew that "standard procedure on a curve [was] to stop the train and send a brakeman around a blind corner to determine whether it was safe." Opening brief at 11. Flintkote overlooks the fact that DeWitt's knowledge of standing cars was confined to a location near the third curve on the spur, considerably closer to the plant than the second curve, where the accident occurred. The evidence was that it was "standard procedure" to stop at the third curve, but there was no evidence that it was standard to stop at the second curve. Flintkote misstates the record when it says that DeWitt knew of a previous accident at the second curve: the evidence was that he had heard merely a rumor of an accident, and that he understood that accident to have occurred at the third, not the second curve.

Flintkote also directs our attention to evidence that DeWitt was partially responsible for enforcing safety rules on the train, that he did not place a man on the front end of the train to watch the track ahead, that he did not place a caboose at the front of the train, that he failed to order the engineer to slow the train's speed, and that he seated himself awkwardly in the engine cab. But Flintkote concedes that the record also contains "some explanation of DeWitt's failures" in these matters. Opening brief at 10. We find that DeWitt's "explanation" was more than sufficient to support a finding that he acted reasonably under the circumstances. DeWitt was not cited for any safety violations; it would have been unsafe to use a "point man" to watch the track from the front of the train; a caboose would have been unsafe or impractical; it was not clear that the train was traveling faster than was customary along the track; DeWitt was "seated awkwardly" because there were one too few seats in the engine, a factor that, according to Flintkote's argument at trial, showed that Western Pacific, not DeWitt, was negligent.

B. Damages.

Flintkote argues that the $400,900 award is clearly excessive because it compensates DeWitt for a total disability when, in fact, he is able to work, albeit not at his previous job as conductor.

We will not, on appeal, disturb an award of damages unless it is clear that the evidence does not support it. Flores v. Pierce, 9 Cir., 1980, 617 F.2d 1386, 1392. Flintkote's argument is meritless. DeWitt presented evidence showing a future wage loss, even considering his future employment apart from the railroad, totaling $841,568, and considerable evidence of pain and suffering, past wage loss, and continuing medical expenses. In its briefs to this court, Flintkote merely summarizes the evidence, concluding that DeWitt's damage case "was brief," "[n]o economist testified, and only three exhibits were introduced." Opening brief at 13. It offers nothing that would lead us to question the damage amount.

C. Sanctions for frivolousness.

We grant DeWitt's request for attorney's fees and double costs in Flintkote's appeal from the judgment for DeWitt. We have discretion to award attorney's fees and costs as a sanction against a frivolous appeal. McConnell v. Critchlow, 9 Cir., 1981, 661 F.2d 116, 118; Fed.R.App.P. 38; 28 U.S.C. Sec. 1912. An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit. McConnell, 661 F.2d at 118.

While Flintkote attacked the sufficiency of the evidence as to DeWitt's conduct and damages, it "made no serious attempt to undermine" the fact finder's conclusions on those matters. See Libby, McNeill, and Libby v. City National Bank, 9 Cir., 1978, 592 F.2d 504, 514. Flintkote's arguments were clearly without merit. The only result of the appeal against DeWitt is to delay payment of his judgment. See id. at 515. Flintkote argues that its appeal should not be considered frivolous because it could have made, but chose not to make, several arguments that it concluded were really frivolous. We congratulate Flintkote on its decision to forgo other frivolous points on appeal, but that does not make the points it did choose to argue any less frivolous. "Counsel must realize that the decision to appeal should be a considered one, ... not a knee-jerk-reaction to every unfavorable ruling," id., quoting Simon & Flynn, Inc. v. Time Inc., 2 Cir., 1975, 513 F.2d 832, 835.

IV. The Judgment for Western Pacific.

A. The indemnity contract.

The magistrate entered judgment for Western Pacific on its indemnification claim after holding that the jury had found by its special verdicts that the railroad was entitled to recover under theories of express and implied indemnity. Because we affirm the judgment under express indemnity, we need not discuss implied indemnity.

A spur track agreement between Western Pacific and Flintkote stated in relevant part, in paragraph 5, that

[Flintkote] also agrees that no pipe, conduit, structure, opening, excavation or debris of any kind whatsoever shall be made, placed or allowed to exist beneath or upon or in the vicinity of said tracks beyond the boundary line of the land of Railroad without first giving Railroad written notice thereof, it being the intent of this paragraph that [Flintkote] shall neither act nor fail to act with respect to said tracks and the area adjacent thereto so as to create a condition unsafe for use by the employees of Railroad in providing rail service. In case of the breach of any obligation herein, in this paragraph contained, [Flintkote] assumes and agrees to indemnify Railroad against all liability for loss, damage, injury and/or death arising therefrom.

The magistrate presented the contract excerpts above to the jury, after overruling Flintkote's objection that the collision occurred on a section of track beyond that...