Northern Pac. Ry. Co. v. Berven

• Decision Date: 15 November 1934
• Docket Number: No. 7548.,7548.
• Parties: NORTHERN PAC. RY. CO. v. BERVEN.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 687 (1934)

NORTHERN PAC. RY. CO. v. BERVEN.

No. 7548.

Circuit Court of Appeals, Ninth Circuit.

November 15, 1934.

L. B. daPonte and Robert S. MacFarlane, both of Seattle, Wash., and J. W. Quick, of Tacoma, Wash., for appellant.

Frank C. Hanley, of Portland, Or., for appellee.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from a verdict and judgment for plaintiff-appellee, in the amount of $7,500, for injuries sustained by appellee through the alleged negligence of appellant, while employed as a car repairer in the shops of appellant at South Tacoma, Wash. By virtue of section 7693, Remington's Compiled Statutes of Washington 1922, as amended by Laws Wash. 1925 (Ex. Sess.) p. 98, the action is controlled by the provisions of the Federal Employers' Liability Act, 45 USCA §§ 51-59.

The principal assignments of error challenge rulings of the trial court denying appellant's motions for nonsuit and a directed verdict, interposed on the ground (1) that the evidence fails to establish negligence on its part, and (2) that the evidence shows appellee assumed the risk.

Appellee had been employed in the car repair shops for about ten years prior to the accident which gave rise to this suit. He was working in a building known as the "wheelhouse," where the wheels are repaired and light car repairing is done. At the time of the accident, his duties were car repairing.

In front of the wheelhouse is a wooden platform, and adjoining the platform, and parallel thereto, is a depressed track, known as the "pit track," which is sunken low enough to allow the top of a flat car placed on the track to be even with the top of the platform, thus facilitating the loading and unloading of car wheels. Beyond the pit track is a storage track, used for the storage of wheels, and between these two tracks is another wooden platform. Along the other side of the storage track is a third wooden platform, at one end of which is a material shed where materials used for car repairing are kept. To form a level passageway from the wheelhouse to the material shed on the farthest platform, a flat car is kept on the pit track at the door of the wheelhouse, and the space between the rails on the storage track is filled with planking, which makes a complete and level crossing, as the rails of the storage track are level with the platforms. Flat strips of iron of different sizes, some nailed down and others unsecured, are placed at various points on the platforms to facilitate the rolling of the heavy car wheels thereon, as it is very difficult to roll the wheels over the rough wooden boards of the platforms.

A strip of such iron, about five feet long, four or five inches wide, and one-quarter of an inch thick, was nailed on the platform crossing just inside a rail of the storage track, running lengthwise with the rail, but it was nailed in the middle only and one end of it had curled up three or four inches. It was on this piece of iron that appellee caught his foot and tripped, resulting in his injuries. The accident occurred while he was returning from the material shed carrying several pieces of lumber on his shoulder.

The negligence charged is that appellant failed to provide a reasonably safe place to work, or a safe footing on the platform, and permitted the spikes that held the piece of iron flat to the surface to become loose and the end thereof to curl up, thus obstructing the platform and footpath, and that appellant failed to warn appellee of that dangerous condition. By its answer, appellant denied that it was negligent in maintaining the condition complained of, and pleaded assumption of risk by the employee.

The principles of law applicable to an action under the Federal Employers' Liability Act (45 USCA §§ 51-59) have been enunciated many times. Negligence on the part of the employer and a causal connection between the negligence charged and the injury sustained is the basis of the action. Delaware, etc., R. R. v. Koske, 279 U. S. 7, 10, 11, 49 S. Ct. 202, 73 L. Ed. 578; Atchison, etc., Ry. v. Saxon, 284 U. S. 458, 459, 52 S. Ct. 229, 76 L. Ed. 397; New York, C. & St. L. R. Co. v. Boulden (C. C. A. 7) 63 F.(2d) 917, 919; Wheelock v. Freiwald (C. C. A. 8) 66 F.(2d) 694, 697.

It appears that the sheets of iron which are used to facilitate the rolling of the heavy car wheels on the platforms are usually nailed down, but the spikes holding them often work loose when the wheels are rolled over them, causing the iron strips to buckle and curl up at the ends. The rotten condition of the wood in the platform is another reason the spikes holding the iron strips work loose. Some of these iron strips are left laying around loose so that they can be conveniently moved to different positions when the wheels are being moved to the storage track. The strip of iron over which appellee tripped, however, was intended to be and should have been nailed securely. An employee of the shops testified regarding it as follows: "It had been nailed, and was nailed at one end and up close to the center, but the other end * * * was...