Farnsworth v. Western Pac. R. Co.

• Citation: 50 Cal.Rptr. 646,241 Cal.App.2d 476
• Court: California Court of Appeals Court of Appeals
• Decision Date: 13 April 1966
• Parties: John E. FARNSWORTH, Plaintiff and Respondent, v. WESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant and Appellant. Civ. 22046.

Page 646

50 Cal.Rptr. 646

241 Cal.App.2d 476

John E. FARNSWORTH, Plaintiff and Respondent, v. WESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant and Appellant.

Civ. 22046.

District Court of Appeal, First District,

Division 3, California.

April 13, 1966.

Cottrell, Hofvendahl & Roessler, by F. H. Pearson, Jr., San Jose, for appellant.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Edward J. Niland, San Jose, for respondent.

SALSMAN, Justice.

This is an appeal from a judgment awarding respondent $64,000 damages for personal injuries arising out of an accident that occurred on April 11, 1960. The basis for the liability imposed is the Federal Employers' Liability Act. (U.S.C.A., Title 45, § 51 et seq.) Appellant contends (1) there is no evidence of its negligence; (2) the respondent was contributorily negligent; (3) the negligence of a third party contributed to the happening of the accident, and finally (4) that the damages awarded are excessive.

Appellant's first contention is not supported by the record. There is some basis for appellant's remaining contentions concerning the negligence of respondent and a third party, but this does not compel reversal of the judgment. The damages awarded, although liberal, are not so great that under established rules the award must be set aside. We therefore affirm the judgment.

On April 11, 1960 respondent was employed as a fireman on an engine owned and operated by appellant. The engine, pulling a boxcar, approached a crossing at Calaveras Road in Milpitas. Respondent, from his position in the engine, saw a gravel truck also approaching the crossing. Although respondent could see the truck, the engineer, who was in immediate control of the engine, could not. The speed of the engine and boxcar was only about seven miles per hour. About 200 feet from the crossing the engineer blew the whistle and respondent turned on the warning bell, but the truck continued on towards the crossing. When the engine was 50 to 75 feet from the crossing respondent told the engineer that a truck was approaching at high speed and suggested that the engineer again blow the whistle. A few feet from the crossing, respondent, fearing a collision, yelled to the engineer 'plug it', ¹ and at the same time reached for the whistle cord, partly for the purpose of sounding the whistle, but also to assist him in a quick exit from the fireman's seat, because the imminent impact would be on his side of the engine. The wooden handle on the whistle cord came loose and respondent fell forward. The engineer attempted to stop the engine, but could not do so. Respondent felt the wheels of the engine skid along the tracks. His knee got caught under a brake valve, and he was flipped back into his seat. There was an impact between engine and truck, and the engine tipped slightly, but the collision was not a severe one. After the collision the engineer stated that '* * * he guessed he got excited and reversed it.' There was evidence that this action would cause the wheels to skid and diminish the braking effect. After the collision the reverse lever of the engine was in reverse position.

Respondent sustained injury in the accident. There was evidence that he suffered a whiplash injury to his cervical spine; there was some injury to his shoulder and right knee. He visited his doctor a total of 40 times from April 11th to October 7th, took medicine, diathermy treatments, and wore a Thomas collar. However, he returned to his work on May 2nd and continued to work part time until December 12, 1960.

On December 12, 1960, respondent was involved in a second railroad accident and sustained injury to his head and neck. After the second accident he was unable to return to work. About a year after his second accident he entered a hospital where surgery to his cervical spine was performed. At the time of trial he still suffered pain in his neck, back and left arm.

Respondent filed two actions against appellant, one based on the accident of April 11th and the second based on the accident of December 12th. The actions were consolidated for trial. The jury found in favor of respondent as to the first accident, but against him and in favor of appellant as to the second accident.

Appellant's first contention is that there is no evidence of any negligence on its part in the accident of April 11th. Appellant's burden here is a heavy one, and well known. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183.) If there is any substantial evidence of appellant's negligence, we must affirm the judgment. Moreover, this is an action under the Federal Employers' Liability Act, and the courts have made it plain that federal law controls. (Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; see also Showalter v. Western Pacific R.R. Co., 16 Cal.2d 460, 471, 106 P.2d 895.) The case of Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506--507, 77 S.Ct. 443, 448--449, 1 L.Ed.2d 493, illustrates the federal attitude towards questions concerning the sufficiency of the evidence in cases arising under the act: 'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributor negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.' Here, then, our task is merely to examine the record to see if there are any facts present from which the jurors, as fair minded men and women, could reasonably infer negligence on the part of appellant. Of course such facts are present. For example, there is some evidence that when respondent shouted 'plug it' to the engineer, the engine could have been stopped before it reached the crossing, but that the engineer threw the driving mechanism into reverse, thus reducing braking power and causing the engine to slide forward rather than stop. There is also some evidence that the engineer did not use the engine's sanders (a device for pouring sand on the rails to aid traction and thus prevent skidding of the engine's wheels). There was also evidence that no flagman was used or was intended to be used in the first crossing of Calaveras Road, although a brakeman was aboard and it was intended to use him as a flagman when the engine was to back across the road. This is evidence from which the jury could reasonably conclude that appellant, through its employees, especially the engineer, was negligent.

Appellant next argues that respondent was contributorily negligent and that the jury did not follow the court's instruction to diminish the amount of any award in proportion to the amount of respondent's negligence. There was indeed some evidence that respondent was negligent. But there was also some evidence from which the jury could reasonably conclude that his negligence did not contribute to the happening of the accident. ² It is perfectly clear, however, that respondent was not guilty of negligence as a matter of law, and that his negligence was not the sole cause of the accident in which he sustained his injuries. All that may fairly be said on our record is that there was evidence before the jury from which conflicting inferences concerning respondent's negligence might be drawn. The...