Morgan v. Ogden Union Ry. & Depot Co.

• Citation: 294 P. 541,77 Utah 325
• Decision Date: 05 January 1931
• Docket Number: 4965
• Parties: MORGAN v. OGDEN UNION RY. & DEPOT CO
• Court: Utah Supreme Court

294 P. 541

77 Utah 325

MORGAN v. OGDEN UNION RY. & DEPOT CO

No. 4965

Supreme Court of Utah

January 5, 1931

Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.

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

AFFIRMED.

Geo. H Smith, J. V. Lyle, R. B. Porter, and W. Hal. Farr, of Salt Lake City, for appellant.

Willard Hanson, A. H. Hougaard, and K. C. Tanner, all of Salt Lake City, for respondent.

EPHRAIM HANSON, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, Jr., and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

The plaintiff brought this action under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for personal injuries sustained by him while he was employed by the defendant in interstate commerce. The case was tried to a jury, and resulted in a verdict and judgment for the plaintiff in the sum of $ 15,000. The defendant appeals.

For a reversal of the judgment, the defendant presented several assignments of error, but the only assignments that were considered or discussed in its brief or in the oral argument related to the court's refusal (1) to direct a verdict for the defendant, and (2) to grant a new trial.

1. The assignments of error relating to the refusal of the court to direct a verdict for the defendant are predicated on the proposition which we here quote from appellant's brief: "That the evidence showed clearly that the plaintiff realized the danger involved in the work that was being done and therefore assumed the risk as a matter of law."

To fairly understand the force of this contention, a statement of the salient facts will be necessary. It is admitted by the defendant that it was engaged in the railroad business as a common carrier, that it owned and operated various railroad tracks in Ogden, Utah, upon which it switched cars and trains in interstate commerce, and that the plaintiff worked for the defendant as a switchman. Further, the evidence, without contradiction, shows that at the time of his injury the plaintiff and the crew to which he belonged were in the act of switching an interstate car from track No. 4 to the Denver & Rio Grande transfer track. In furtherance of this purpose, the car had been brought from the No. 4 track on to the main track or lead. The engine foreman who was in charge of the crew and directed this work decided to transfer the car to the Denver & Rio Grande transfer track by means of a flying or drop switch. This consisted of running the engine up to a desired speed and then uncoupling it from the car so as to permit the engine to proceed along the main tracker lead at an increased speed past the switch, whereupon the switch was thrown so as to divert the car to the transfer track. This was done, but the switchman riding the car applied the brake too soon, and the car did not proceed far enough past the switch so as to be in the clear of the engine and cars passing along the main lead. The engine foreman decided to push the car back on the main lead and start the drop over again. As the engine was on the main lead and the car on an adjoining track, it was necessary to use a pole to reach across from the engine to the car. The engine foreman brought an ordinary railroad tie for that purpose. The tie was eight feet long and eight by eight inches square. The engine foreman put one end on the pin lifter of the car, and told the respondent to hold the other end so that as the engine came up slowly he could put it against the buffer beam of the engine toward the side nearest the car. With the tie in that position, it was thought the car would be pushed back on the main lead. This attempt failed. The engine struck the tie with such force as to drive the car back about two feet, and the end of the tie resting on the pin lifter of the car fell to the ground. By direction of the foreman another attempt was made.

There is a direct conflict between the testimony of the respondent and the engine foreman in reference to many phases of this second attempt to pole the car. There is evidence, however, tending to show that the engine and the car were closer together than they were on the first occasion, so that the respondent could not stand on the outside of the track and hold the tie in such a position that as the engine came slowly forward the tie would come in contact with the outer end of the buffer beam as it had done in the first instance, and that the respondent had requested the foreman to have the engine moved back so that it could be done in that way. The engine foreman instead told the respondent to hold the tie toward the center of the engine alongside of and next to the draw bar of the engine. To do this it was necessary for the respondent to stand between the rails in front of the engine. Respondent testified that he was directed by the foreman to hold the tie in that position until the engine could be brought slowly forward against the tie, and until sufficient pressure had been brought against it to hold it in place; that the engine foreman said he would then have the engine stopped so that respondent could get in the clear. There is evidence tending to show that to do this the engine would have to be brought forward very slowly for about six inches and then stopped; there is substantial evidence tending to show that this could have been done had the engine foreman given the proper directions and signals to the engineer. The engineer was called as a witness for appellant, and on his direct examination testified that with the kind of an engine they had "you should be supposed to stop within an inch"; that he had poled cars a number of times, and, if proper directions and signals are given, it is a simple matter to control the engine. In this particular instance, after getting the signal to move forward, he testified that he continued to go forward, and did not receive another signal from the engine foreman until he had received the "washout," and he then stopped the engine. There is evidence to the effect that before the engine began to move forward the car was approximately three feet from the engine, and that, when the engine was brought forward, it hit the tie with such force that it drove the car forward three or four feet. It is conclusively shown that the engine continued to move forward until it caught the respondent's foot between the buffer beam of the engine and the car. According to this evidence, the engine moved forward at least from six to seven feet before it was stopped. Respondent testified that he relied upon the assurance which he said had been given to him by the engine foreman that the engine would be brought forward very slowly until it came in contact with the tie, a distance of six inches, and then stopped so that respondent could get out from between the engine and the car. Instead of the engine being brought forward very slowly, it came with such force as to drive the car from three to four feet by the impact, causing that end of the tie to fall to the ground. The respondent further testified that, as the engine did not stop, he let the tie fall, and to avoid being run over he jumped on the running board of the engine; and, as the engine had gotten so close to the car, grabbed the brakestaff on the car and attempted to pull himself up so that he would be above the buffer beam of the engine as it came in contact with the car. In this he almost succeeded, but his right foot was caught and badly crushed. The testimony shows without dispute that the engine foreman directs the work of the switching crew, and that the engineer stops and starts the engine only upon signals from the foreman.

From the foregoing statement we think there was ample evidence to warrant the jury in finding that the appellant was negligent (1) in that the engine was permitted to strike against the tie with an excessive and unnecessary amount of force, thereby driving the car back three or four feet by force of the impact and causing the tie to fall from the car to the ground; (2) after the tie had fallen to the ground, in permitting the engine to move forward at least six or seven feet before it was stopped when the respondent was in a position of peril and all the while in plain view of the engine foreman; and (3) in the neglect and failure of the engine foreman to signal or otherwise direct the engineer to stop the engine as soon as it had been brought forward far enough so as to firmly brace the tie between the engine and the car--which, as we have already stated, was six inches according to respondent's testimony--in order to give respondent an opportunity to get in the clear. It is also apparent that the negligence of the appellant in the foregoing particulars was the direct and proximate cause of respondent's injury. Of this the appellant does not make any serious contention to the contrary. Nor is it...