Duchsherer v. Northern Pac. Ry. Co.

• Decision Date: 17 February 1971
• Docket Number: No. 204--II,204--II
• Citation: 4 Wn.App. 291,481 P.2d 929
• Parties: George E. DUCHSHERER, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant.
• Court: Washington Court of Appeals

Page 291

4 Wn.App. 291

481 P.2d 929

George E. DUCHSHERER, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant.

No. 204--II.

Court of Appeals of Washington, Division 2.

Feb. 17, 1971.

As Amended March 9, 1971.

Review Denied May 6, 1971.

Roger J. Crosby, Delbert W. Johnson, Burlington Northern, Inc., Portland, Or., for appellant.

Huntington & Borders, Ronald Huntington, Kelso, and Reiter, Day, Wall & Bricker, Glenn H. Prohaska, Monte Bricker, Portland, Or., for respondent.

PEARSON, Judge.

Defendant, Northern Pacific Railway Company, appeals from a judgment entered on a jury verdict in favor of the plaintiff in an action seeking damages for personal injuries. Plaintiff cross-appeals from an order of remittitur in which the trial court reduced the jury verdict from $100,000 to $60,000 or, in the alternative, granted a new trial.

At the time of this accident, plaintiff George E. Duchsherer, was a section foreman for the Northern Pacific, based at Wymer, in Yakima County. As part of his duties, plaintiff occasionally had to make a journey to Selah to replenish supplies of gasoline and lubricants. On the date of the accident, plaintiff and two of his crew members had located two pushcars (essentially a small flatcar without means of self-propulsion) with 13 empty, 55-gallon drums and had coupled these pushcars to the A--3 motorcar the railroad had provided them. The A--3 motorcar is a self-propelled, 1-ton vehicle, designed both to carry people to their work and, when coupled with the pushcars, to pull around loads of material those people might need in their work.

After traveling for some time down the mainline of the Northern Pacific, which at this place consisted of straight, level, ribbon track (that is, track with the joints welded to form ribbons up to 1/4 mile long) the motorcar suddenly rolled over on its top, causing plaintiff severe, permanent injury to his neck and shoulders. The cause of this unfortunate mishap was not clear, but the evidence pointed to a device, called a turntable, having broken off the front of the motorcar and having fallen in the path of the wheels, causing the car to overturn. The plaintiff testified that he heard steel strike steel just before the overturning. A railway investigator testified that marks on the ties and the position of the wreckage indicated to him that the turntable came loose. This turntable is a device constructed by the railroad so that its section crews, which have been reduced in size in recent years, might more readily move the motorcar on and off the tracks.

Plaintiff's complaint alleged two causes of action. The first cause of action claimed under the Locomotive Inspection Act (45 U.S.C.A. § 22 et seq. (1954)), and the second claimed under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq. (1954)).

The trial court separated its instructions to the jury into two groups, relating to the two causes of action. The court first considered the cause of action brought under the Locomotive Inspection Act. After completing instruction on this phase of the case, the court told the jury that they were to deliberate upon this cause and if they did not find liability under it, they were then to consider the second portion of the instruction relating to the F.E.L.A. In this second portion of the instructions, the jury was directed to answer two special interrogatories if their verdict was under the F.E.L.A. Since the jurors are presumed to follow the instructions of the court, and since no answers were given to the special interrogatories, we assume the jury determined defendant's liability under the Locomotive Inspection Act. We will thus consider the assignments of error relating to that cause.

The first question defendant raises is whether or not the A--3 motorcar is a locomotive for purposes of the Locomotive Inspection Act. The trial court instructed the jury that the A--3 motorcar was a locomotive for purposes of the statute and the defendant excepted both to the giving of this instruction and to the failure to instruct that the motorcar was not a locomotive. Both parties agree that this is a question of federal law. Under the federal law, we believe that the A--3 motorcar is a locomotive for purposes of the statute and that the trial judge was correct in so deciding.

As an initial proposition, we note that federal railroad legislation, including the Locomotive Inspection Act, has the humanitarian purpose of protecting workers and other persons from harm caused by defective railroad equipment. In view of this purpose, it ought to be construed liberally, so as to afford maximum protection for life and limb. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943); Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). In a case involving a motorcar pulling a pushcar on the tracks of the Baltimore & Ohio Railroad, the United States Supreme Court found that the Safety Appliances Acts (45 U.S.C.A. § 1 et seq. (1954)) applied to motorcars when the motorcar was in use as if it were a locomotive. That is, where the motorcar is being used to carry people or pull cargo on the railroad's track, it is being used like a locomotive and it will be treated as such, and consequently is subject to provisions of the law designed to protect persons from harm. Baltimore & Ohio Ry. v. Jackson, 353 U.S. 325, 77 S.Ct. 842, 1 L.Ed.2d 862 (1957).

We acknowledge that a Caterpillar tractor used to pull cars around a railroad yard has been held not to be a locomotive for purposes of the federal statutes, Mazzucola v. Pennsylvania R.R., 281 F.2d 267 (3d Cir. 1960) but even in that case, the court pointed out that it was excluding a thing that did not run on rails, but rather on its own tractor treads. The court recognized that a motorcar used to pull pushcars down the track had been held within the act, but stated it would not go beyond that holding to further expand coverage of the federal statutes.

We also note that the Interstate Commerce Commission, with its particular expertise in the area of railroad regulation, follows a similar functional definition of locomotive. 297 ICC 177, 190 (1955). After the Baltimore & Ohio Ry. v. Jackson decision, the commission prescribed rules to be followed in the case of motorcars used as locomotives, and pushcars used like more conventional freight or passenger cars. In this rule making, the commission again accepted the sort of functional definition urged by the plaintiff in the trial court and here. 325 ICC 722 (1965).

Federal policy favors liberal protection of persons from harm in railroad accidents. Various acts have been construed together where necessary, to achieve this end. Urie v. Thompson, Supra.

We think that in this case the motorcar in question was being used as a locomotive and that the Locomotive Inspection Act was applicable as a matter of law.

Did the trial court properly instruct the jury under the Locomotive Inspection Act? Defendant's assignments of error on this branch of the case resolve themselves into three major categories: (1) failure to properly instruct on burden of proof; (2) failure to properly define the causal connection necessary between the violation of the statute and the injury to plaintiff; and (3) failure to properly define the defendant's duty under the statute.

Defendant's contentions regarding burden of proof are without merit. The trial court instructed the jury that where the following words were used--' burden of proof' or 'preponderance' or 'fair preponderance of the evidence' or 'if you decide' or 'if you find'--they were to consider all the evidence in the case and be persuaded that the proposition in question was made probably true than not true. In the balance of the instructions, the trial court several times used the expression 'if you find' in regard to propositions, the proof of which was necessary to plaintiff's case. The words 'burden of proof' are not wrapped in some semantic magic that necessitates their invocation in order to have legally sufficient instructions and we do not deem the failure to define that word as such constituted error. See State v. Redden, 71 Wash.2d 147, 426 P.2d 854 (1967). When we read the instructions given in this case we find an admirably clear exposition of the propositions the trial court felt were conditions precedent to plaintiff's recovery under the Locomotive Inspection Act. The requirement that the jury must be told the prerequisites of liability, See State v. Carter, 4 Wash.App. 103, 480 P.2d 794 (1971), was more than adequately met here.

This leaves us with defendant's other two major categories of error, which test the sufficiency of the propositions the trial court set out as requisites for recovery. The first of these alleged difficulties relates to the trial court's lack of a specific definition of the necessary causal connection between a violation of the statute and the injury. ¹

We first note that the Locomotive Inspection Act is a strict liability statute, not based on the common law tort concept of negligence. That is, violation of the Locomotive Inspection Act imposes strict liability without regard to contributory fault. Lilly v. Grand Trunk Western R.R., Supra; 2 W. Schneider, Workmen's Compensation Law § 276 (3d ed. 1942). The older common law concept of proximate cause is not applicable in its full rigor to this statutory scheme. Rather, the courts, being mindful of the benevolent purposes of the statute, look to whether the statutory violation contributed in some way to the injury of plaintiff and upon finding such a connection, impose liability. Page v. St. Louis Southwestern Ry., 349 F.2d 820 (5th Cir. 1965); Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). In the law of our own state, we think that the rule of Restatement (Second) of Torts § 402 A (1966), and Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452...