Ericksen v. Southern Pac. Co.

• Citation: 39 Cal.2d 374,246 P.2d 642
• Court: California Supreme Court
• Decision Date: 31 July 1952
• Parties: ERICKSEN v. SOUTHERN PACIFIC CO. S. F. 18478.

Page 642

246 P.2d 642

39 Cal.2d 374

ERICKSEN v. SOUTHERN PACIFIC CO.

S. F. 18478.

Supreme Court of California, in Bank.

July 31, 1952.

Rehearing Denied Aug. 28, 1952.

Dunne, Dunne & Phelps, R. Mitchell S. Boyd and A. B. Dunne, San Francisco, for appellant.

Leo Fried and William P. Callahan, San Francisco, for respondent.

SHENK, Justice.

The defendant Southern Pacific Company appeals from a judgment on a verdict awarding the plaintiff Ove E. Ericksen § 18,000 damages for personal injuries in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, for failure to provide the plaintiff with a safe place to work.

The plaintiff was employed by the defendant railroad company as a lumber inspector. It was his duty to inspect lumber on the premises of various lumber companies in Washington and Oregon and accept or reject it for shipment to the defendant. Railroad ties which he inspected would be shipped to various states. Some would be used for the building of new tracks and some for the repair of old. Some would be first sent to California for creosoting; others would be immediately used in an untreated state.

On June 17, 1947, the plaintiff was inspecting ties on the loading dock of an Oregon lumber company. The ties that he approved were being loaded in defendant's freight car standing alongside the dock. The ties being inspected were so piled that the ends of some were even with the edge of the dock while others extended beyond it. The plaintiff stood on the dock beside the pile. He then leaned over the edge in order to inspect the ends, standing on his right foot, holding his right hand against the pile, with his left foot in midair. He attempted to return to an upright position. While still off balance he set his left foot on the dock, touching some foreign object on the dock, possibly a pebble or piece of bark. His foot twisted and he fell, injuring his ankle.

The plaintiff testified that on other docks it was customary to keep the lumber away from the edge of the dock so that it could be readily checked. He further declared that he had almost fallen in making a previous inspection at this dock and had complained to his superior that not enough room was left at this particular location.

The applicability of the Federal Employers' Liability Act is brought into question. It provides:

'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

'Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.' 45 U.S.C.A. § 51.

It is unnecessary to discuss the nature of the defendant employer's activities. When the employee's duties are shown to have had the required effect on interstate commerce he is 'deemed' to have been employed by a carrier engaged in that commerce. The decision in Howard v. Illinois C. R. Co. (Brooks v. Southern Pac. Co.) 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297, casts no doubt on the constitutionality of such a rule. A similar statute was there held unconstitutional because it failed to require that the activities of either the employee or the employer affect interstate commerce. Such a requirement is clearly a part of the present statute as to the duties of the employee. This rule is designed, in part, to eliminate the necessity of determining whether an employee was engaged in interstate commerce at the moment of his injury. Southern Rac. Co. v. Industrial A. C., 19 Cal.2d 271, 120 P.2d 880. But there is no indication that this was intended to be its sole effect.

The defendant contends that the Act does not apply to the plaintiff because he is not a 'railroader' exposed to the risks peculiar to railroading. The Act furnishes a broader definition of those eligible to its benefits. It is made applicable to any employee whose duties further interstate commerce 'or shall, in any way directly or closely and substantially' affect such commerce. 45 U.S.C.A. § 51.

No decision relied upon by the defendant which has excluded an employee from coverage under the Act in its present form deals with the question whether one performing the particular type of work done by the plaintiff falls within this definition. None suggests a test of any greater precision or ease of application the present case than the words of the statute itself. In Holl v. Southern Pacific Company, D.C., 71 F.Supp. 21, 24, employees who have been held covered by the Act were distinguished from those not entitled to its protection on the ground that '* * * each was furthering, i. e., promoting or helping along, present of future interstate commerce.' In Thomson v. Industrial Commission, 380 Ill. 386, 393, 44 N.E.2d 19, 23, the court similarly did no more than rephrase the words of the statute by saying that '* * * the test must be whether the activity in which the employee is engaged at the time of the accident, directly or closely and substantially affects interstate commerce.' See also Lawrence v. Rutland Railroad Co., 112 Vt. 523, 526, 28 A.2d 488, 143 A.L.R. 476.

It has been held that work on new tracks not yet in service is not covered by the Act, Moser v. Union Pacific R. R. Co., 65 Idaho 479, 14 P.2d 336, 153 A.L.R. 341. The ties inspected by the plaintiff were not destined solely for such a use. Some were immediately transported across state lines and placed in tracks carrying interstate commerce, others were placed in such tracks after being taken to another state for creosoting, and the plaintiff himself crossed state lines in the performance of his services. It is reasonable to conclude that his duties satisfy the statutory requirement that they be in furtherance of interstate commerce.

It is argued on behalf of the defendant that negligence on its part was not established. It may be assumed that the jury could have concluded that the premises were unsafe only because of the presence of a foreign object on the dock and that the exercise of reasonable care did not require the defendant to prevent the existence of such a condition. That conclusion is not compelled as a matter of law. The question was one for the jury to determine.

Under the evidence the jury was entitled to conclude that the plaintiff was required to perform the duties of a tie inspector in a place where the defendant knew that there was danger of a fall because of the inconvenient location of the ties; that if the defendant had been exercising reasonable care to provide the plaintiff with a safe place to work it would not have required him to work there; that the inconvenient location of the ties was the cause of the plaintiff's injury since it forced him to assume an awkward, off-balance position likely to result in a fall; and that the defendant therefore breached his duty to the plaintiff to furnish a safe place in which to work.

The plaintiff's knowledge of the unsafe nature of the premises does not relieve the defendant of liability. Since 1939 the defense of assumption of risk has been barred under the Act. 45 U.S.C.A. § 54. ^* No subsequent decision has been cited which as a matter of law relieves an employer from liability for injuries due to dangers known to the employer simply because those dangers were also known to the employee.

The defendant asserts that since it did not own the premises it had no control over them and is therefore not liable for the injury sustained. The case of Lang v. Lilley & Thurston Co., 20 Cal.App. 223, 230, 128 P. 1028, 1030, is relied on. There it was said that, 'The principle underlying the decisions relating to the duty of the employer to furnish a safe place in which the employe is put to work is that the employer cannot be justly charged with negligence as to matters over which he has no control.' See also Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 977, 217 P.2d 45. It is argued that lack of direct control of the premises freed the defendant from responsibility no matter how unsafe it knows a particular location to be so long as its employees are aware of the danger.

The defendant's argument is answered by Terminal Railroad Association of St. Louis v. Fitzjohn, 8 Cir., 165 F.2d 473, 476-477, 1 A.L.R.2d 290. In that case the defendant employer had furnished a switching crew which was operating a third party's switch engine on that party's premises over tracks constructed, maintained, and owned by that party. The premises were unsafe because, as the plaintiff switching crew foreman knew, light standards attached to a cement ramp wall were so close to a track that there was insufficient clearance to permit a trainman to ride the side ladder of a freight car past that point. This lack of clearance resulted in injury to the plaintiff as he rode by while clinging to the side of a car. The court affirmed a judgment for the plaintiff and held that the absence of ownership or control of the premises by the employer did not absolve it from liability for their unsafe condition.

No distinction may be drawn between the present problem and the Terminal case on the ground that there the employer had taken over control of the third party's premises for the conduct of the employer's business or that the third party furnished the instrumentalities. In neither case did the...