McAfee v. Ogden Union Ry. & Depot Co.

• Citation: 218 P. 98,62 Utah 115
• Decision Date: 17 August 1923
• Docket Number: 3945
• Parties: McAFEE v. OGDEN UNION RY. & DEPOT CO
• Court: Utah Supreme Court

218 P. 98

62 Utah 115

McAFEE v. OGDEN UNION RY. & DEPOT CO

No. 3945

Supreme Court of Utah

August 17, 1923

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by D. C. McAfee against the Ogden Union Railway & Depot Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

George H. Smith, J. V. Lyle, and R. B. Porter, all of Salt Lake City, for appellant.

Marioneaux & Beck and Willard Hanson, all of Salt Lake City, for respondent.

WEBER C. J. GIDEON, THURMAN, and CHERRY, JJ., concur. FRICK, J. did not participate.

OPINION

WEBER, C. J.

This action is brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The substance of the complaint is: That defendant was engaged in operating a railroad yard in Ogden, Utah in interstate commerce, and that, at the time of the accident, plaintiff was employed in interstate commerce; that in February 22, 1921, while in the employ of defendant as engine foreman, he was riding on a ladder on the side of a box car, which was being switched onto a track, known as the south shopyard lead, for repairs, and while in that position he was struck by a switch stand and knocked off.

The negligence alleged was that the defendant carelessly and negligently maintained a certain switch stand about 4 1/2 feet in height, fitted with a target revolving vertically, which switch stand the said defendant carelessly and negligently erected and maintained besides said south shopyard lead, and carelessly and negligently permitted the said switch stand to be erected and to be maintained so close to the west rail of said track that there was great, unusual, and imminent danger that any person riding upon the sides or ladders of any box car passing said switch would be struck and injured by the target of said switch; that there was not the usual and necessary clearance between said switch stand and the target thereof and said rail, or between said switch stand and the cars when the same were being moved upon the track and past the said switch; that while he was riding upon a ladder on the side of a car he was struck in the side by the target of said switch stand, knocked off the car, and injured.

In the answer, plaintiff's averments of negligence were denied. It was admitted that the plaintiff at the time was engaged in switching certain cars, in need of temporary repairs, on what is known as the south shoplead in defendant's yards, and that plaintiff was injured. The answer further pleaded contributory negligence and assumption of risk by plaintiff.

The jury returned a verdict in favor of plaintiff for $ 10,000. From the judgment thereon entered, the defendant appeals.

The multitudinous errors assigned by counsel are discussed under various headings, the first being that the evidence affirmatively shows that the plaintiff assumed the risk of the accident resulting in his injury.

In actions under the federal act the defense of assumption of risk must be applied as construed and defined by the decisions of the federal courts. Seaboard Air Line R. R. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475. It is said in Roberts, Injuries to Interstate Employes, § 98:

"Under the rulings of the United States Supreme Court an employe of a railroad engaged in interstate commerce, whether he is actually aware of them or not, assumes such damages and risks as are ordinarily incident to the employment. And he also assumes the risks due to the negligence of his employer when he becomes aware of the defect and the risk arising from it, or when such defects and risks are so open and obvious that an ordinarily prudent person would have observed and appreciated them, and then continues in the service without complaint." Gila Valley & G. N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Seaboard Air Line v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062; L.R.A. 1915C, 1 Ann. Cas. 1915B, 475; Texas & Pacific R. Co. v. Swearingen, 196 U.S. 51, 25 S.Ct. 164, 49 L.Ed. 382; Choctaw, O. & G. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; U. P. R. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Schlemmer v. B. R. & P. R. Co., 220 U.S. 590, 31 S.Ct. 561, 55 L.Ed. 596.

The negligence of having the switch stand in unusual proximity to the track so that there was danger that employes riding on the side of box cars passing the switch stand would be likely to be struck and injured was not a danger or risk ordinarily incident to the employment in the railroad yards. The crucial question for the jury was, and the crucial question here is: Did plaintiff know that the switch stand was too near the track, or was the location of the switch stand, and, considering its height, was its unusual proximity to the track, so plain and obvious that the plaintiff must be presumed to have known and appreciated the danger out of which the accident arose?

The facts in this case may be summarized as follows:

The plaintiff entered the employment of defendant on July 4, 1920, in the capacity of a switchman in defendant's yard at Ogden, Utah. Prior to that he had worked in the train service for 10 years on various railroads. He worked as a switchman about one month for defendant and was then promoted to engine foreman, in which position he had charge of the crew, in which, besides himself, were two switchmen, an engineer, and a fireman. He worked in this capacity until some time in October, 1920, when he laid off until about the middle of January, 1921, because of sickness. About 10 days or 2 weeks before he was injured he was given charge of what is called the rip track engine, at which he was working at the time of the accident. Prior to that time he had not worked in that part of the yards and was not familiar with that locality. He worked an 8-hour shift--from 6 p. m. to 2 a. m. During the time he was engaged on this track all his work was done at night. He and the men under him used lanterns to give signals. The work of plaintiff at this time consisted of taking from the rip track the cars that had been repaired and were ready to return to service, and, after putting them in their proper place in the yard, to return bad order cars for repairs.

The yards are extensive, covering more than 640 acres, and they contain hundreds of switches used in connection with the different train operations by the different crews. The rip track was used by the car repairers for repairing cars. To protect the men engaged in that work there was a derail switch so arranged that a "toad," consisting of a piece of iron, could be placed upon the track and thus prevent any car from going upon the repair track. At 6 p. m. the car repairmen themselves would unlock the switch and from then on the rip track was open for receiving repair cars. The base of the derail switch was fastened to an extension of one of the ties, and from the base a rod extended upward about 5 feet. Near the top was a target and on top of the target was a lamp which projected toward the track 2 or 3 inches from the staff upon which it was fastened. This lamp was lighted during the nighttime to show whether the "toad" was on the rail or not, and to indicate the location of the switch stand. Some of the witnesses placed the distance of the stand from the rail at about 40 inches, but according to the general track foreman the distance was about 4 feet 5 inches from the center of the staff to the outside of the rail; from the lamp to the rail practically 4 feet. There was no other switch stand in the yard of the same height that was as close to the track. All others that were as close were either ball or ground switches and were so arranged that men, while riding on the side of a car, would pass above them and would not be injured in their work. All other switches having a staff of this height averaged about 6 feet from the track.

The cars that plaintiff and his crew would bring to the rip track varied in width from 9 feet 8 inches to 10 feet 5 inches. Some of the large cars would project over the track more than 2 1/2 feet, sometimes leaving a clearance of less than 20 inches. Sometimes the men would ride on the side of the cars, sometimes on top, and at other times on the footboard of the engine. Several witnesses testified that, when riding on the side of cars at that place, they had been struck or caught by the staff and knocked from the cars.

Between 8 and 9 o'clock on the evening of February 22d, plaintiff and his crew were bringing in four bad order cars to leave on the rip track. Plaintiff was walking toward the rip track, where the cars were to be spotted, when these four cars were being pushed upon the track by the engine; plaintiff got on the side of one of the cars in such position that he could signal to the engineer and at that time the switch stand struck him about the hip, knocking him to the ground and causing the injuries complained of. Three days afterwards the defendant ordered the switch cut down, thereby making it safe. According to the testimony of the plaintiff, this was the first time he had ever ridden past the switch on the side of a car. He had usually walked down the rip track lead or the roundhouse lead, or else had ridden on the top of a car or on the footboard. He believed this switch stand was the same distance from the track as all others in the yard. He testified:

"I didn't pay any particular attention to that switch, no more than I did any other switch. I supposed there would be enough clearance. I didn't know it was as close as it was. I didn't know anything about it. In the progress of my work I didn't have time to step through those and see their clearance. * * * I had seen the switch there the same as...