Hudson v. Southern Pacific Transp. Co.

• Decision Date: 09 March 1988
• Citation: 751 P.2d 800,90 Or.App. 119
• Parties: Glenn Al HUDSON, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Respondent. A8405-03147, CA A42696.
• Court: Oregon Court of Appeals

Page 800

751 P.2d 800

90 Or.App. 119

Glenn Al HUDSON, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Respondent.

A8405-03147, CA A42696.

Court of Appeals of Oregon.

Argued and Submitted Dec. 11, 1987.

Decided March 9, 1988.

Thomas M. Christ, Portland, argued the cause for appellant. With him on the briefs were Monte Bricker and Stephen C. Thompson, Portland.

Jeffrey M. Batchelor, Portland, argued the cause for respondent. With him on the brief were James L. Hiller, and Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Before WARDEN, P.J., and VAN HOOMISSEN and GRABER, ^* JJ.

VAN HOOMISSEN, Judge.

Plaintiff, a brakeman for defendant railroad, brought this action under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq, and the Safety Appliance Act (SAA), 45 U.S.C. § 1 et seq, for injuries sustained when he fell from a ladder attached to a boxcar on which he was working. Defendant moved to withdraw plaintiff's SAA claim from the jury. The trial court denied the motion. A jury returned a verdict for defendant.

Plaintiff appeals. He contends that the trial court erred in instructing the jury on the requirements of SAA. The question is whether a ladder fixed to the side of defendant's boxcar was "secure" within the meaning of section 11 of SAA. 45 U.S.C. § 11. ¹ We review for substantial error, ORS 19.125(2), see Collett v. Cascade Health Care, 43 Or.App. 489, 603 P.2d 369 (1979), and reverse.

While at work, plaintiff slipped and fell from a ladder attached to the side of defendant's boxcar. He testified that, as he slipped, he reached for the stile extension ² but could not grab it, because it was bent. He contends that that defect permitted his fall and resulting injuries. Defendant admits that the stile extension was bent. It argues, however, that that does not violate SAA.

The trial court instructed the jury that

"as a matter [of law] under the Safety Appliance Act and under the regulations having application [thereto], * * * there is no specific requirement that a boxcar ladder have a stile extension above the top rung of the ladder * * *."

Plaintiff contends that that instruction was erroneous. Defendant answers that the instruction was not erroneous, but, even if it was, that plaintiff's exception to the instruction was satisfied by another instruction given the jury. ³

FELA provides a remedy "basically * * * predicated only upon negligence." O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 391, 70 S.Ct. 200, 205, 94 L.Ed. 187 (1950). SAA, however, provides a cause of action predicated on a statutory violation but remedied through FELA. O'Donnell v. Elgin, J. & E. Ry. Co., supra. SAA requires railroads to equip cars with the safety appliances prescribed by statute or regulations. ⁴ The SAA duty is absolute, and it is not excused by any showing of care, however assiduous. Brady v. Terminal R. Ass'n of St. Louis, 303 U.S. 10, 15, 58 S.Ct. 426, 429, 82 L.Ed. 614 (1938).

To prevail on his SAA claim, plaintiff must prove a violation of SAA which caused injury. If there are no factual issues concerning the placement, condition or operation of a safety appliance, the violation question is one of law for the court. Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1949); Grothusen v. National R.R. Passenger Corp., 603 F.Supp. 486, 488 n. 5 (E.D.Penn.1984). If a violation exists as a matter of law, only the causation and damage issues go to a jury. Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 434-435, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949). ⁵

Defendant admits that the stile extension was bent. It argues however, that, because extensions are not specifically required by the regulations and are not necessary to make a ladder secure, a bent one is not a violation of SAA. Plaintiff argues that, even though the regulations do not require stile extensions, SAA mandates that ladders be secure in all aspects. Therefore, by instructing the jury that SAA and the regulations under it do not specifically require stile extensions on ladders, the court effectively instructed the jury that the bent extension did not violate SAA, precluding recovery under that theory.

It is irrelevant that neither SAA nor the regulations specifically require extensions. The regulations list and standardize appliances required for the safety of railroad workers. Those regulations set only minimum standards. The specific requirements of the regulations may be met and yet SAA may be violated. Shields v. Atlantic Coast Line Railroad Co., 350 U.S. 318, 323, 76 S.Ct. 386, 390, 100 L.Ed. 364 (1956). Although the regulations do not specifically mention stile extensions, SAA requires that boxcar ladders be "secure." Under the act, "secure" has been defined as safe, see Shields v. Atlantic Coast Line Railroad Co., supra, 350 U.S. at 324, 76 S.Ct. at 391, and "without defect." See Cusson v. Canadian Pac. Ry. Co., 115 F.2d 430, 432 (2d Cir.1940). Once a ladder with stile extensions has been provided, the extensions must be as secure as the rest of the ladder. See Shields v. Atlantic Coast Line Railroad Co., supra; Grothusen v. National R.R. Passenger Corp, supra, 603 F.Supp. at 489. It is conceded here that one stile extension was bent, that is to say, defective.

Jury instructions should be read as a jury might reasonably have understood them. Riley Hill General Contractor v. Tandy Corp., 82 Or.App. 458, 461, 728 P.2d 577 (1986), aff'd. 303 Or. 390, 737 P.2d 595 (1987). The challenged instruction does not directly preclude the jury from considering the extension. We cannot determine whether the jury understood that it could consider the defect to be a violation of SAA. However, we conclude that the jury may reasonably have understood that the stile extension defect could not be considered in determining whether the ladder was secure. Therefore, giving the challenged instruction was reversible error.

Defendant's cross-assignment ⁶ raises the issue of whether the trial court erred in not directing a verdict for plaintiff's SAA claim. Defendant relies on Grothusen v. National R.R. Passenger Corp., supra. Viewing the evidence in the light most favorable to plaintiff, Simpson v. Sisters of Charity of Providence, 284 Or. 547, 549, 588 P.2d 4 (1978); Gerke v. Burton Enterprises, Inc., 80 Or.App. 714, 718, 723 P.2d 1061 (1986), we conclude that defendant's contention is not well taken. See Shields v. Atlantic Coast Line R. Co., supra. ⁷

Reversed and remanded.

* Graber, J., vice Young, J., deceased.

1 45 U.S.C. § 11 provides, in part:

"It shall be unlawful for any common carrier subject to the provisions of sections 11 to 16 of...