Elswood v. Oregon Short Line R. Co
| Decision Date | 12 July 1933 |
| Docket Number | 4951 |
| Court | Utah Supreme Court |
| Parties | ELSWOOD v. OREGON SHORT LINE R. CO |
Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.
Action by Sidney A. Elswood against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals.
REVERSED and REMANDED with directions.
George H. Smith, R. B. Porter, and W. Hal Farr, all of Salt Lake City, for appellant.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, and B. L Liberman, of St. Louis, Mo., for respondent.
Plaintiff, the servant of the defendant company, recovered a judgment against defendant for personal injuries claimed to have been sustained by reason of the negligence of the defendant. From the judgment, the defendant appeals. The action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). At the trial the parties stipulated that at the time plaintiff was injured he was engaged in interstate commerce. The negligence relied upon by plaintiff for a recovery was that defendant carelessly maintained, a short distance above the top of locomotives which were to be repaired in its roundhouse at Salt Lake City, Utah, pipes wrapped with asbestos and tar paper. Defendant denied negligence on its part. As an affirmative defense it alleged that plaintiff by his contract of employment assumed the risk of receiving the injuries concerning which he complained, and that the sole cause of his injuries was his own negligence.
At the conclusion of plaintiff's evidence in chief, defendant moved the court to grant a nonsuit, and at the conclusion of all of the evidence defendant requested the court to direct the jury to render a verdict in its favor. Both the motion for a nonsuit and the request for an instructed verdict were based upon defendant's claim that the evidence failed to show the defendant guilty of any negligence, and that the evidence affirmatively showed that plaintiff assumed the risk of the matters concerning which he complained and that his injuries were caused solely by his own negligence. The court denied the motion and refused to instruct the jury to render a verdict of no cause of action. Errors are assigned because of such rulings.
The evidence without conflict shows the following facts: Plaintiff was, at the time of his injury, a sheet metal worker of about thirty-three years experience in that occupation. He had worked at that trade since he was a boy and had performed all kinds of work connected with that trade. He had been in the employ of the defendant company for about five years. His work for the defendant consisted chiefly in covering the bodies of locomotives and repairing pipes, jackets, smoke stacks, lining cabooses, and water tanks on passenger cars.
The defendant owned railroad tracks upon which it operated trains propelled by steam power in Utah, Idaho, and various other states. In connection with its business it maintained shops and a roundhouse at Salt Lake City, Utah, in which it repaired its locomotives. The roundhouse was built circular in shape and was divided into twenty stalls. Locomotives were placed in the stalls when they were to be repaired. There was an opening in the roof of the roundhouse above each stall for the purpose of permitting the smoke from the locomotives to escape. Light entered the roundhouse through windows constructed in the wall. When repair work was to be done on an engine, it was run into one of the stalls so that the smoke stack of the engine would be immediately below the opening in the roof. About three months before the time in question, some changes were made in the construction of the stalls in the roundhouse. The location of the steam pipes was also changed. After the changes were made, there were three 4-inch steam pipe lines and an inch air line attached to the ceiling of the building. The pipe lines extended in a circle around the building immediately above the cabs of locomotives which were placed in the various stalls. The air line was used to convey compressed air for power used in repair work. The steam pipe lines were used for the purpose of blowing down or cooling off engines which were brought into the roundhouse for repairs. The steam pipe lines were first covered with asbestos, then wrapped with tar paper, then at intervals fastened with wire, and finally the tar paper was painted. The asbestos served to prevent the heat from escaping from the pipe lines. The tar paper and paint served to protect the asbestor from the weather. On the day in question plaintiff and Mr. Bridge were directed by the general foreman of the defendant company to make some repairs on an engine which was standing in one of the stalls in the roundhouse. The engine which was to be repaired was very large. It was the mountain freight type of locomotive. The defendant company operated only one other locomotive of the same type. That type of locomotive was constructed with an unusually large lid over the cab. The lid was 53 1/2 inches long and 25 1/2 inches wide. It weighed about 60 pounds. On one end it was fastened to the engine by means of hinges, the other end was not fastened. The lid served as a means of ventilating the cab when the engine was in use. By raising the end of the lid which was not fastened, it would swing up and open on the hinges which fastened the other end of the engine. Mr. Bridge accompanied by plaintiff went to the engine as directed and after ascertaining what repairs were needed, plaintiff climbed onto the top of the engine, opened the lid on the top of the cab, and repaired that part of the engine which he thought could best be repaired from the top of the engine. As he was in the act of closing the cab lid he fell from the engine onto the cement floor below and sustained the injuries complained of.
Plaintiff testified that it was necessary for him to go onto the top of the engine and open the cab lid in order to make the repairs which he was directed to make; that Mr. Bridge, his immediate superior, told him to go onto the top of the engine to make the repairs; that he had been working in defendant's roundhouse where he was injured for a period of about five years; that he had frequently been required to go on top of engines to make repairs such as the repairs made on the day in question; that he knew the pipe lines were immediately above the engine cab where he was making the repairs but his attention had not been particularly called to the pipe lines; that because of the smoke on the windows it was somewhat dark in the roundhouse at the time he was injured; that when he opened the cab lid he did not observe it catch on anything; that it swung back and rested upon the air line while he was making the repairs; that in closing the lid he reached his hand back and took hold of it and when it reached a perpendicular position it caught, his hand came off, and he fell to the cement floor below; that as he was falling he looked up, saw that the lid was caught on the paper lining which was wrapped around the steam pipe line; that up to that time he had not observed how the tar paper was wrapped around the pipe. Plaintiff's evidence is not entirely clear as to how the lid could have passed the steam pipe line when it was opened but caught when he attempted to close it. The theory, however, which is urged in his brief is that the overlapping of the tar paper which was used to wrap the pipe line created a seam on the bottom of the pipe and that in attempting to close the lid it caught on the seam.
Defendant offered evidence which tended to show that the seam of the tar paper at the place in question was on the side of the pipe line and not on the bottom and that it was impossible for the lid to be opened in such a way as to pass under the steam pipe and rest upon the air line as testified to by the plaintiff. There are other conflicts between plaintiff's testimony and that of defendant, but we need not consider these conflicts in the evidence in passing upon the questions now under review. In deciding the questions of whether or not a nonsuit should have been granted or a verdict directed for the defendant we must view the evidence in the light most favorable to plaintiff. In testing the sufficiency of the evidence with respect to those questions the defendant stands in the position of admitting the truth of plaintiff's evidence, and all reasonable inferences which the jury might fairly draw therefrom favorable to the plaintiff.
This being an action brought under the Federal Employers' Liability Act, the law announced and applied by the federal courts in similar cases is controlling. It is well settled that it is the duty of an employer to use ordinary care and prudence to see that the place where an employee is at work is reasonably safe. The employer, however, is not an insurer of the employee's safety. There is no guarantee that the place is absolutely safe. While the foregoing general rules are well established, difficulty frequently arises in their application to the special circumstances of particular cases. Respondent cites the following cases in support of his claim that the evidence in the instant case was sufficient to support a finding by the jury that appellant failed to perform its duty of using ordinary care to see that the place where he was at work when he received the injuries complained of was reasonably safe: Leach v. Oregon Short Line R. Co., 29 Utah 285, 81 P. 90, 110 Am St. Rep. 708; Texas & Pacific Ry. Co. v. Swearingen, 196 U.S. 51, 25 S.Ct. 164, 49 L.Ed. 382; McAfee v. Ogden Union Ry. & Depot Co., 62 Utah 115, 218 P. 98; Smith v. Hines,...
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