McGuigan v. Southern Pac. Co.

• Decision Date: 18 August 1952
• Court: California Court of Appeals Court of Appeals
• Parties: McGUIGAN v. SOUTHERN PAC. CO. Civ. 15118.

Page 415

247 P.2d 415

112 Cal.App.2d 704

McGUIGAN v. SOUTHERN PAC. CO.

Civ. 15118.

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

Aug. 18, 1952.

Rehearing Denied Sept. 17, 1952.

Hearing Denied Oct. 16, 1952.

Cosgriff, Carr, McClellan & Ingersoll, Burlingame, Frank A. Dutton, San Mateo, for appellant.

Arthur B. Dunne, R. Mitchell, S. Boyd, Dunne, Dunne & Phelps, San Francisco, Robert L. Lamb, San Francisco, for respondent.

PETERS, Presiding Justice.

In this action, brought under the Federal Employers' Liability Act, the widow of James J. McGuigan seeks to recover damages for his wrongful death alleged to have been caused in interstate commerce by the negligence of the defendant employer, the Southern Pacific Company. At the conclusion of plaintiff's case, the trial court granted a non-suit. Plaintiff appeals.

The facts most favorable to appellant show the following: The decedent was 51 years old at the time of his death, which occurred on May 1, 1948. At that time he had worked for the S.P. at various jobs for some twenty-eight years.

On October 20, 1947, the decedent had entered the Southern Pacific Hospital and had remained there as an in-patient until November 8, 1947. Diagnosis and electrocardiograms disclosed that he was then suffering from obesity, auricular fibrillation (irregular contraction of the chambers of the heart), dyspnea (shortness of breath), cyanosis (purplish hue to lips and ears), high blood pressure, possible left coronary occlusion and a widespread coronary artery pathology, including arteriosclerosis. The heart specialist at the hospital testified that the decedent, while in the hospital, lost sixteen pounds and that, as a result, upon his discharge from the hospital, there was no longer a cardiac insufficiency, although the doctor had written on the discharge sheet that the 'electrocardiogram shows evidence consistent with left coronary artery occlusion.'

After his discharge from the hospital on November 8, 1947, decedent returned to work as a yardman. On February 13, 1948, one of the doctors in the hospital wrote to decedent informing him that, as a result of a review of his medical history, he should 'report to General Hospital every 90 days for recheck' and should report to Dr. Kaufman, the heart specialist. Copies of this letter were sent to the general manager of the S.P. and to the superintendent of its coast division. Pursuant to this letter the decedent reported to the hospital on February 20, 1948, and remained there as an inpatient until March 19, 1948. During this period further electrocardiograms and X-rays were taken, disclosing a recurrence of the cardiac insufficiency. Hypertrophy of the heart muscle was disclosed, apparently high blood pressure causing an expansion of the heart muscle. Dr. Kaufman attempted to discount some of the symptoms then discovered by testimony to the effect that the cyanotic condition was somewhat less marked and the shortness of breath had improved. The record showed a fluctuating high blood pressure, which Dr. Kaufman discounted as not being of very great importance. But when decedent was discharged from the hospital on March 19, 1948, Dr. Kaufman refused to permit him to return to work, ordered the employee on three months' sick leave, and took the necessary and usual steps to preserve the decedent's seniority rights during his sick leave. Dr. Kaufman informed decedent that during this period he should keep down his weight and get as much rest as possible.

Dr. Kaufman terminated the sick leave before the ninety days had expired. He testified that he did this because a representative of decedent's brotherhood had come to see Dr. Washburn, the head of the hospital, and represented that because of decedent's seniority he could work at the main depot in San Francisco as a herder, a position with lighter duties than those formerly performed by decedent. According to Dr. Kaufman, it was also represented by the union representative that decedent was visiting the railroad yards daily and worrying himself sick because he was not working. Dr. Kaufman stated that, because of these representations, he agreed to terminate the sick leave. He admitted, however that in making this recommendation he relied upon certain correspondence between the S.P. and the hospital relating to decedent's disability, and the nature of his duties upon his return to work. This correspondence is important because the evidence is to the effect that the rule of the S.P. is that the determination of fitness for duty is made by the hospital staff and not by the S.P. directly. An employee on sick leave cannot be taken back on the job without a release from the hospital, and sick leave is ordered by the medical staff.

The correspondence shows the following: Under date of March 26, 1948, the chief surgeon advised the superintendent of the coast division of the S.P. that decedent should be granted three months' sick leave, and then it would be determined if he could return to work. Under date of March 22, 1948, decedent was granted such leave, to expire June 22, 1948. Under date of April 14, 1948, the chief surgeon of the hospital wrote to the superintendent stating that he had been informed by the brotherhood representative that decedent, because of his seniority, could secure a job as herder in the San Francisco yard of the company, and had been informed that decedent's 'duties as such would consist only of 'cutting off' locomotives as they arrive at the station and 'coupling' engines to passenger trains for departure; that he would have no physical effort to put forth, nor would he at any time have to jump on or off moving equipment.

'Before further considering him for such assignment I will appreciate your advising whether his duties would be limited to the extent cited.'

The superintendent, who was quite familiar with the duties of a herder in the San Francisco yard, under date of April 20, 1948, replied to the above letter as follows: 'If Mr. McGuigan were assigned as herder his duties would consist merely of cutting off inbound engines and coupling on outbound engines. There would be no mounting or dismounting of moving equipment involved, nor would there be any riding of equipment to be done.'

There is another unsigned letter, dated April 23, 1948, probably an interoffice communication, addressed to J. W. Corbett, the general manager of the S.P., advising Corbett that decedent was not yet ready to return to his duties as a yardman, but that the doctor 'advises he will be entirely safe in the position of herder * * * in which assignment he would have no great physical effort, nor be required to jump on and off moving equipment.'

The chief surgeon sent to the superintendent a release dated April 29, 1948, authorizing the company to hire the decedent as a herder, and the general manager of the company authorized decedent's resumption of work 'restricted to herder's duties under the conditions described.'

Actually a herder's duties were substantially more strenuous than those described in these letters. Three operating employees of the S.P. testified that it was standard and customary procedure for a herder to ride moving equipment and to jump on and off such equipment. While the yardmaster testified that a herder may ride moving equipment or not in his own discretion, that testimony, at most, merely created a conflict. The extent of a herder's duties is also disclosed by the evidence of what decedent actually did when he reported for work on May 1, 1948. When he left home that morning he looked and acted normal. He arrived at Third and Townsend Streets at 6:30 a. m. Because of his seniority, he had the right to select his shift, and he had selected this particular shift. He told the yardmaster of the terminal that the new job was 'duck soup' and that he could 'last a long while doing this.' He started to perform his normal duties. There are two herders on duty at the terminal, one coupling outgoing engines, the other uncoupling incoming engines. Decedent uncoupled incoming engines. The peak period for incoming trains at this station is between 7:30 and 9 a. m. During that period decedent uncoupled some twelve to fourteen engines from the commute trains as they arrived. This did not require him to walk more than 150 feet. The uncoupling operation consists of lifting and pulling the cutting lever located between the first car and the engine. This can be done by leaning over about three feet from the cement ramp adjoining the track and stooping down and pulling the lever, or it can be done by jumping down to track level and then pulling the lever. In the latter event, the lever would be about waist high for the herder. This lever will give easily if there is slack between the car and the engine, and the herder has the right to ask the engineer to move the engine so as to create such slack. Some herders, rather than make such a request, will exert considerable pressure with both hands to move the lever. Just how decedent performed his duties on the commute trains does not appear in the evidence, but there is considerable evidence as to how he performed his duties in connection with the Lark, a train admittedly engaged in interstate commerce. When that train arrived at about 9 a. m., decedent uncoupled the engine without requesting that the engineer give him some slack. The engineer testified that decedent then signalled that the uncoupled engine should move away, and, after the engine had started up, jumped on a step located on the moving equipment. This step, located a couple of feet from the ground, is about a foot wide. Decedent grasped with both hands a vertical 'grab iron' located on the tank of the engine, one hand being at about chin level and the other above his head. Decedent, as part of his regular duties with the Lark, rode in this manner across Third Street. There the engine stopped and decedent, as part of his regular duties,...