Holl v. Southern Pac. Co.

• Decision Date: 19 March 1947
• Docket Number: No. 25999.,25999.
• Citation: 71 F. Supp. 21
• Court: U.S. District Court — Northern District of California
• Parties: HOLL v. SOUTHERN PAC. CO.

71 F. Supp. 21

HOLL v. SOUTHERN PAC. CO.

No. 25999.

District Court, N. D. California, S. D.

March 19, 1947.

Hildebrand, Bills & McLeod, of Oakland, Cal., for plaintiff.

Dunne & Dunne, of San Francisco, Cal., for defendant.

YANKWICH, District Judge.

The action arises under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The defendant is a railroad company engaged in both interstate and intrastate commerce. The plaintiff is employed by it as an assistant distribution clerk, working in its offices in the Southern Pacific building at 65 Market Street, San Francisco, California.

In her complaint, she alleges that she was injured on October 24, 1945, at or about the hour of 8 o'clock a. m., while she was coming up in one of the elevators in the building in order to reach her place of business. She seeks to recover $920 for loss of wages and $50,000 as general damages for the injuries she alleges to have suffered.

Her complaint asserts two claims or causes of action: (1) The first alleges careless and negligent operation and control of the elevator, which caused it to be stuck between the third and fourth floors of the building; (2) the second alleges negligence on the part of employees of the defendant who, in removing her from the elevator through the roof, caused her to sustain a severe scraping injury on her right leg.

The evidence showed that she was treated by the company's physicians for contusions of the right leg below the knee, which extended from knee to ankle. She did not return to work until March 2, 1946.

The plaintiff claims recurring pains which make it difficult for her to stand up, and, at times, cause her right leg to flex and make her fall. The clinical reports from the defendant's doctors and hospital negative any bone injury. They also reflect the medical opinion that the accident left no permanent effect. The same medical opinion attributes the physical difficulties of which the plaintiff complains to an arthritic condition.

Were I to determine the extent of the injuries, I would consider the record on the subject so unsatisfactory as to warrant examination of the plaintiff by some orthopedist appointed by the Court under Rule 35 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. However, having reached the conclusion that the plaintiff cannot invoke the benefit of Section 1 of the Federal Employers' Liability Act, as amended in 1939, 45 U.S.C.A. § 51, such action is unnecessary.

The evidence in the case was brief. The incident which led to the claimed injury was described by the plaintiff alone. The defendant offered no eyewitnesses to the occurrence. The clinical and hospital records, including Roentgenograms, were supplied by the defendant and introduced in evidence. The defendant also brought into Court the time cards of the plaintiff during the period involved.

The defendant insists that the testimony of the plaintiff fails to show any negligent act on its part or on the part of its employees.

It is axiomatic that recovery under the Employers' Liability Act, including the 1939 Amendment, is dependent upon proof of negligence on the part of the carrier. Jesionowski v. Boston & Maine Railroad, 1947, 67 S.Ct. 401; Ellis v. Union Pacific Railroad Co., 1947, 67 S.Ct. 598.

I expressed doubt, at the trial, whether recovery could be had on the first claim grounded on the application of the doctrine of res ipsa loquitur. This, for the reason that when the elevator was stalled between the two floors, the plaintiff remained standing. In fact, the evidence is clear that there was no sudden jar which caused any one to fall or be thrown against the walls or door of the elevator. The injury of which the plaintiff complains occurred when she was taken out of the stalled elevator. Further consideration of the evidence leads me to the conclusion that, while it is not so strong as one might wish, it warrants the inference that the injury resulted from the negligence of the employees of the defendant. These employees, who have not been identified, in seeking to assist the plaintiff out of the elevator, caused her right leg to be dragged against the roof of the elevator and injured it. Whether the case comes strictly within the doctrine of res ipsa loquitur or not, I believe the evidence is sufficient to prove negligence, as it is uncontradicted and is not challenged as improbable in view of the physical surroundings and circumstances.

In this, as in every other type of negligence, the test to be applied in determining the standard of care is that of the reasonable person. I feel that, under the circumstances, the obvious thing to have done would have been to lower a box, chair or ladder into the elevator. This would have given those seeking to pull out the plaintiff through the roof a leverage which would have prevented her legs dangling against the metallic and hard surfaces around. Endeavoring to pull her out without such leverage necessarily resulted in the swaying of her legs and caused injury. And, as the defendant is responsible for the position in which the plaintiff, without fault, found herself, so it is also responsible for the action of its employees in injuring her while trying to extricate her from such position. And attributing the injury to the manner in which the defendants' employees sought to remove her from the trapped elevator, and inferring negligence from it, we are applying the norm which controls in cases of this character and which has been held sufficient to fasten liability on employers. See Lukon v. Pennsylvania R. Co., 1947, 3 Cir., 131 F.2d 327, 329, 330; Tiller v. Atlantic Coast Line R. Co., 1945, 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Jesionowski v. Boston & Maine R. R., supra; Ellis v. Union Pacific R. R. Co., supra, and see Raymond J. Moore: Recent Trends in Judicial Interpretation in Railroad cases under the Federal Employers' Liability Act, 1946, 29 Marquette Law Review, 73.

However, despite this conclusion, I am of the view that plaintiff cannot recover because none of her duties while in the employ of the defendant, either before or at the time of the accident, were in "furtherance of interstate or foreign commerce" within the meaning of the 1939 Amendment to the Federal Employers' Liability Act, 45 U.S.C.A. § 51.

The aim of the amendment was to "eliminate the necessity of determining whether an employee, at the very instant of his injury or death, was actually engaged in the movement of interstate traffic". Report of the Senate Judiciary Committee, as quoted in Southern Pacific Co. v. Industrial Accident Commission, 1942, 19 Cal.2d 271, at page 278, 120 P.2d 880, 884. See also excerpts from hearings in Ermin v. Pennsylvania Ry. Co., 1941, D.C.N.Y., 36 F.Supp. 936.

It was, no doubt, the object of the amendment to enlarge the railroad transportation group to be benefited by the Act. This was achieved not by changing the main section, but by adding a new clause to it. The main section still left the test of liability that the employee be "employed by such carrier in such commerce". However, the new clause increased the group by adding those whose duties, in whole or in part, directly, closely or substantially affect interstate commerce. Shelton v. Thomson, 1945, 7 Cir., 148 F.2d 1, at page 3.

The plaintiff was employed as a clerk in the freight claim department. When a claim for lost or damaged freight came in, she wrote, from memory, on a form, the route over which the freight had traveled. From this, a typist made a typewritten form which went to the auditor, who audited the claim, allowed it and apportioned the loss to the various carriers over the lines of which the shipment had been carried.

The plaintiff had nothing to do with the allowance of the claim, or distributing it to the carriers. Her work was one of a chain of acts, which finally resulted in the allowance of the claim. It involved no exercise of discretion, and was in no way a part of interstate commerce or in furtherance of it.

If she comes under the Act, so does the typist to whom she furnished the list of carriers, and the office boy who may have acted as messenger between the two. And so, for that matter, does every other clerical employee in the department. I do not think that it was the intention of the Congress to include such employees and to withdraw them from the protection of State Employers' Liability Laws. On the contrary, I am of the view that had Congress intended to include them, it would have amended the first part of Section 51 by omitting the words "in such commerce". This would have extended the Act to "any person suffering injury while he is employed by such carrier," and would have placed all employees of interstate railroads under the Act, whether their work be clerical or not, or in any way connected with the interstate commerce or not. It would have made the sole test the interstate nature of the business of the carrier. This it could have done constitutionally even if it had included employees and activities clearly local and intrastate. See Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 1911, 221 U.S. 612, 618, 31 S.Ct. 621, 55 L.Ed. 878; Southern R. Co. v. United States, 1911, 222 U.S. 20, 26, 32 S.Ct. 2, 56 L.Ed. 72; Texas & Pacific Ry. Co. v. Rigsby, 1916, 241 U.S. 33, 42, 36 S.Ct. 482, 60 L.Ed. 874; National Labor Relations Board v. Jones & Laughlin, Steel Corporation, 1937, 301...