Lewis v. Union Pac. R. Co.

• Decision Date: 30 August 1954
• Citation: 127 Cal.App.2d 280,273 P.2d 706
• Court: California Court of Appeals Court of Appeals
• Parties: LEWIS v. UNION PAC. R. CO. Civ. 19888.

Page 706

273 P.2d 706

127 Cal.App.2d 280

LEWIS v. UNION PAC. R. CO.

Civ. 19888.

District Court of Appeal, Second District, Division 1, California.

Aug. 30, 1954.

E. E. Bennett, Edward C. Renwick, Malcolm Davis, Jack W. Crumley, Los Angeles, for appellant.

Raoul D. Magana, Henry P. Lopez, Los Angeles, for respondent.

MOSK, Justice pro tem.

Respondent, an employee of the appellant Railroad Company for more than twenty years, had served as a member of a crew of workmen in appellant's East Los Angeles yards for about two and one-half years prior to April 27, 1950. On that date he was performing certain repair work on a train popularly known as the 'City of Los Angeles'.

A leak of air pressure was discovered on a routine test of brakes and respondent, together with a fellow workman, Harold Purcell, through a series of tests isolated the leak first to a lounge car numbered 3408 and then more specifically to brake valve number 1864 on that individual car. The two employees, respondent and Purcell, prepared to replace the leaky valve, respondent removing the old valve and Purcell preparing the new.

Respondent seated himself on the rail directly under the valve. He removed three of the four bolts holding the valve in place and set one after another on the rail beside him. After removing the third bolt and while respondent was placing it upon the ground the valve suddenly fell and landed on his left thigh and knee causing the severe injuries of which he complained in a law suit subsequently filed pursuant to the provisions of the Federal Employers' Liability Act.

The 'City of Los Angeles' is a train operated between Los Angeles and Chicago, partly on the route conducted by the appellant Union Pacific and partly over the road of the Chicago and Northwestern Railway Company. The coach involved herein was designated a Chicago and Northwestern car, but was attached to a Union Pacific train. It was stipulated that this appellant has no employees in Chicago. The amount of repairs to trains made at Chicago was subject to some conflict at the trial.

The jury returned a verdict for the respondent employee in the sum of $5,500, and from that judgment the appellant railroad has pursued this appeal. The appellant has based its appeal on three grounds: first, the trial court erroneously instructed the jury; second, counsel for respondent committed prejudicial misconduct in the trial; and third, no negligence on the part of appellant was established by the respondent and therefore the verdict of the jury was not substantiated by the evidence. We shall consider the foregoing points seriatim.

Appellant complains of a jury instruction of the trial court that 'It has been established that the car involved in the accident was the property of the defendant and that it was in charge of and being operated by agents of that defendant, acting within the scope of their authority'. The court was in error as to ownership of the individual railroad car in question, for the only evidence on the subject indicated it was actually the property of the Chicago and Northwestern Railway Company. But title is relatively unimportant under these circumstances, no question having been raised at the trial concerning control and operation of the car by appellant at the time of the accident. The law seems well settled that a railroad company owes substantially the same duty with regard to cars of another company used on its road as it does to its own cars. Baltimore & P. R. Co. v. Mackey, 157 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; Rowe v. Colorado & S. R. Co., Tex.Civ.App., 205 S.W. 731; Gaines v. Detroit, G. H. & M. Ry. Co., 181 Mich. 376, 148 N.W. 397. There was an issue as to control of the car at the time of an act of negligence, as contrasted with the time of the accident, but nothing in the foregoing instruction purports to resolve that conflict. Therefore, despite the inaccuracy of the instruction, it was not prejudicially erroneous.

Appellant further complains of misconduct by respondent's counsel in the trial of the action. When counsel obliquely attempted to interject respondent's war record under the guise of showing his tolerance for pain, the court promptly and properly sustained objections to that line of interrogation and discussion. While appeals to emotion are to be avoided in courts of law, Lowenthal v. Mortimer, 125 Cal.App.2d ----, 270 P.2d 942, we cannot find counsel for respondent to have committed any improprieties of sufficient significance to be considered prejudicial. There was no conduct here remotely comparable to that censured in Deibler v. Wright, 119 Cal.App. 277, 6 P.2d 344.

Under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., every common carrier by railroad shall be liable in damages to an employee for injury resulting in whole or in part from the negligence of the carrier or its employees. It is clear that under the sections of the act applicable here, the employer is not an insurer of the employee's welfare, but the latter has the burden of proving...