Girany v. Oregon Short Line Railroad Co.

• Decision Date: 28 May 1936
• Docket Number: 6303
• Citation: 58 P.2d 841,56 Idaho 740
• Parties: EDWARD N. GIRANY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

58 P.2d 841

56 Idaho 740

EDWARD N. GIRANY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 6303

Supreme Court of Idaho

May 28, 1936

MASTER AND SERVANT-INJURY TO SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT-ASSUMPTION OF RISK-DAMAGES-EVIDENCE-DEPENDENT FAMILY-EARNING CAPACITY-ADMISSION OF EVIDENCE.

1. Conflict between plaintiff's and section crew foreman's testimony in action for injuries to railroad signal maintainer in collision between his and section crew's gasoline motor cars as to what such foreman told plaintiff at station before starting to work and at subsequent stop to unload tools presented question for jury.

2. Common-law rule of assumed risk is available to employer in action under Federal Employers' Liability Act for injuries to employee, if facts justify its application, in absence of violation of any statute enacted for employees' safety (Federal Employers' Liability Act sec. 4, 45 U.S. C. A., sec. 54).

3. Railroad signal maintainer did not assume risk of collision between his and section crew's gasoline motor cars as result of such crew's negligence in leaving their car on track or failing to warn signal maintainer of its presence thereon while he was discharging duties which prevented him from keeping adequate lookout for such obstruction (Federal Employers' Liability Act, 45 U.S. C. A., secs. 51-59).

4. Jury's verdict for plaintiff in action against employer for injuries to employee as alleged result of fellow employees' negligence, conflicting evidence as to which was submitted to jury by proper instructions correctly stating law of assumed risk, is conclusive on appeal.

5. Generally, evidence in personal injury action that plaintiff has family dependent on him and testimony as to number of members thereof is inadmissible as immaterial, and admission thereof for purposes of exciting jurors' sympathies or otherwise increasing amount of verdict for plaintiff is erroneous.

6. Testimony in action against employer for injuries to employee, furnished house, rent free, with coal, ice and water for himself and family, in addition to his wages, by employer, as to number of members of his family living in house, held relevant and material as tending to establish what he could and did earn in addition to his wages.

7. Evidence of amount of earning capacity lost by employee as result of accident was relevant and material in his action against employer to recover damages for injuries sustained.

8. Defendant insisting that either all or none of testimony respecting certain matter be stricken out when plaintiff's counsel suggested that portion thereof be stricken held in no position to complain of such portion on appeal, where other portions were relevant and material.

9. Damages recovered for personal injuries must be confined to actual injuries suffered by plaintiff and cannot be augmented by proof that others will suffer because of such injuries.

10. Admission of plaintiff's testimony in personal injury suit that he had family, consisting of wife and four children, held not ground for reversal of judgment on verdict in his favor as enhancing damages, in absence of proof of financial situation of family.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Isaac McDougall, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Geo. H Smith and H. B. Thompson, for Appellant.

In a suit by a railroad employee to recover damages for his injuries, it is prejudicial and reversible error to admit evidence concerning the number of children or other dependents which the plaintiff has. (Rogers, Admr., v Davis, Director General, 39 Idaho 209, 228 P. 330; Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, 145; Silver King Min. Co. v. Kendall, 23 Ariz, 39, 201 P. 102; Gulf, C. & S. F. Ry. Co. v. McGinnis Admx., 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785.)

The risk of injury from collision by a signal maintainer on a straight track in the daytime is an ordinary incident of the service, and is assumed by such employee as a matter of law. (Chesapeake & Ohio R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914; Connelley v. Pennsylvania R. Co., 201 F. 54, 119 C. C. A. 392, 47 L. R. A., N. S., 867; Goure v. Storey, 17 Idaho 352, 105 P. 794; Bernola v. Pennsylvania R. Co., 68 F.2d 172.)

Such risk of injury rests upon contract. (Selhaver v. Dover Lumber Co., 31 Idaho 218, 226, 169 P. 1169; Arizona Copper Co. v. Hammer, 250 U.S. 400, 422, 39 S.Ct. 553, 63 L.Ed. 1058, 1067; Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, 28 L.Ed. 787.)

Walter H. Anderson, Gus Carr Anderson, Robert M. Terrell and F. M. Bistline, for Respondent.

The better rule is that under state court decisions, which control in this case as to procedure, it is not error to admit evidence of family composition of a party litigant; especially when unaccompanied by other questions as to dependency and support calculated to enhance the damage beyond the proper measure of damages. (Luiz v. Falvey, 228 Mass. 253, 117 N.E. 308; Kling v. Thompson-McDonald L. Co., 127 Minn. 468, 149 N.W. 947, 950; Hardin v. City of Moline, 179 Ill.App. 101, 103.)

Respecting defense of assumption of risk, only ordinary and obvious risks incident to one's employment are assumed, and risks not ordinarily so incident, when obvious, known and appreciated; but unobvious, unexpected, unusual, unseen and unappreciated, and extraordinary risks are never assumed by an employee, regardless of any theory upon which the defense is based--contract, tort or otherwise--and an employee is not required to keep a lookout or protect himself against unexpected, unobvious and unappreciated dangers and risks. (18 R. C. L. 671, sec. 164, also, p. 676, sec. 167; 39 C. J. 689, sec. 891, also, p. 684, sec. 882; 45 U.S.C. A. 447, 448, 449, notes 23 and 24; Kippenbrock v. Wabash R. Co., 270 Mo. 479, 194 S.W. 50, 52.)

Assumption of risks in this case was clearly a question for the jury, as was also the question of whether the master negligently failed to warn of known danger. (45 U.S.C. A. 495, 496, note 113; Claris v. Oregon S. L. R. Co., 54 Idaho 568, 33 P.2d 348; Northern P. R. Co. v. Berven, 73 F.2d 687; Denver & S. L. Ry. Co. v. Lombardi, 87 Colo. 311, 287 P. 648.)

MORGAN, J. Givens, C. J., and Holden and Ailshie, JJ., concur. Budge, J., did not Participate in the decision.

OPINION

MORGAN, J.

This action was commenced by respondent pursuant to U.S.C. A., Title 45, known as the Federal Employers' Liability Law, sec. 51 of which provides: "Every common carrier by railroad while engaged 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, . . . ."

At the time of the accident out of which this litigation arose, appellant was engaged as a common carrier in, and employed respondent in interstate commerce within the meaning of that section. The employment was that of signal maintainer and it was one of respondent's duties to inspect and, when necessary, to repair or replace bond wires, which were attached to the rails, at the joints, in such a way as to connect them and transmit electric current through them, by which the block signal system was operated. The bond wires were attached by channel pins, driven into holes in the rails, and passed under the angle bars (sometimes called fish plates) by means of which the rails were bolted together.

Prior to and at the time of the accident respondent lived at Kimama, a station on appellant's railroad, and it was his duty to inspect the block signal system and keep it in repair for a distance of about 30 miles westward from there. A section crew, whose section extended about 9 miles west from Kimama, also lived there. Appellant furnished a gasoline propelled motor car to respondent and another to the section crew for use by them on its railroad tracks in the performance of their duties.

The morning of the accident respondent and the foreman of the section crew had a conversation shortly after which the crew, including the foreman, started on its car, west from Kimama, to work. A few minutes thereafter respondent started west along the track, on his car, inspecting the bond wires of the signal system. The nature of his work made it necessary for him to, and he did, lie down across the car so that he might see and properly inspect the bond wires and, while doing so, his range of vision along the track was but a few feet. When some distance out from the station the section crew stopped and unloaded some tools. While this was being done respondent came up and had another conversation with the foreman. Respondent testified the foreman told him, before starting, he was going out about a quarter of a mile and unload some tools and was then going on to the end of his section; that as he (respondent) approached the point where the tools were being unloaded the foreman flagged him down, and he stopped; that the foreman there said "I am going to the west end of my section and let you by" and "I will watch out for you, Eddie." The testimony of the foreman contradicts that of respondent with respect to what was said at Kimama and at the stop to unload the tools. That conflict in the evidence presented a question for the jury. (Carrey v. Secesh Dredging etc. Co., Inc., 55 Idaho 136, 39 P.2d 772.)

After unloading the tools the foreman and crew continued westward on their car along the track. When they had gone a distance of 500 or 600 feet respondent followed...