Padilla v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 12 March 1956
• Docket Number: No. 6017,6017
• Citation: 1956 NMSC 34,295 P.2d 1023,61 N.M. 115
• Parties: Solomon S. PADILLA, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1023

295 P.2d 1023

61 N.M. 115

Solomon S. PADILLA, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Defendant-Appellant.

No. 6017.

Supreme Court of New Mexico.

March 12, 1956.

Rehearing Denied April 24, 1956.

B. G. Johnson, James T. Paulantis, Albuquerque, for appellant.

Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellee.

McGHEE, Justice.

The defendant has appealed from a judgment rendered upon a jury verdict which awarded to plaintiff the sum of $23,750 (the full amount asked) in damages for injuries incurred by him in discharge of his duties as a sheet metal worker in the Albuquerque shops of the defendant. The action was based upon an alleged violation of the Federal Employers' Liability Act, as amended 45 U.S.C.A. Sec. 51 et seq. Specifically, the plaintiff claimed the defendant failed to furnish him a reasonably safe place to work and as a result a steel block used by him at times to aid in repairing metal jackets removed from steam locomotives fell from the bench where he was working, hitting one of his big toes with a resulting deterioration of his foot and partial loss of use thereof, in addition to pain and suffering; that he is no longer able to work at his trade of sheet metal worker and has had to accept such employment as he could obtain and hold as a labore unable to stand while working.

The defendant denied any negligence on its part and pleaded contributory negligence on the part of the plaintiff.

Under the statute under which this action was brought the defense of contributory negligence does not defeat a recovery but only reduces the damages in the proportion such negligence contributes to the injury and the defense of assumed risk has been abolished. There is no dispute here that the federal decisions are controlling; in passing upon cases brought under the Act federal decisional law is binding upon us.

The first point made by defendant is that the plaintiff failed to sustain the burden of proof that defendant was negligent, but, on the contrary, that the accident was caused by the sole negligence of the plaintiff; that, therefore, the trial court erred in refusing to sustain defendant's motion for a directed verdict first made at the close of plaintiff's case and later renewed at the close of all of the evidence.

On February 1, 1954, the date of the injury, plaintiff's principal duty as a sheet metal worker was to repair metal jackets which had been removed from steam locomotives and brought into the sheet metal shop. In repairing these jackets plaintiff worked on a table constructed of wood with a half-inch steel plate on top. The table was 34 3/4 inches high and measured 81X96 inches on top, being 1/4 inch low at one corner. It had been in the sheet metal shop since 1925 and the plaintiff first used it in connection with his work in 1928. He had assigned to him a mallet, steel hammer, chisel, screw driver, two pair of snips and electric shears, all of which he would place in the tool box behind him. In addition to these tools plaintiff used two metal blocks, one of steel and the other of lead. The steel block was approximately 5X3X2 1/2 inches and weighed between 8 and 10 pounds. The plaintiff stated that as he would pound on the jackets which he placed on top of the table the piece of steel would move along the table and sometimes fall as he was hammering away.

At the time of his injury, while plaintiff was pounding on a jacket with a hammer, the steel block fell off the table, striking him on the right foot.

It seems agreed the tool box was not a suitable place for the storage of the steel block when it was not in use, but there was a small shelf on the tool box (smaller than the block) on which it could have been placed. The excuse given by the plaintiff for leaving it on the table where he was pounding was that he was required to keep such tool handy and in front of him on the table, and also, that he would have been reprimanded by the foreman had he not kept it there; that he realized the danger of keeping the block on the table and had asked the foreman for a railing around the table so the block would not fall off, or for a peg on which he could put the block and tie it with a string. He also testified he had reported the dangerous condition of the place where he worked at a safety meeting at which the foreman was present. In this testimony he was corroborated by several fellow workers. The foreman testified he did not remember the matter being reported at a safety meeting or any such complaint by the plaintiff. When asked by the plaintiff for the minutes or record of the safety meeting, the foreman answered he had been transferred to California some four or five weeks before the trial and had been unable to find the record since his return. No attempt was made by the defendant to account for the loss of the record.

The plaintiff testified that shortly before his injury he had placed the steel block at the corner of the table about five inches from the edge; that because of the vibration resulting from his pounding it fell from the table and struck his foot.

The foreman testified it was not practical to make the change on the table the plaintiff said should have been made--that often a workman had a jacket to repair which was as large as the table so that a guard or railing was not practical. He also said he would be against the use of a peg mentioned above.

In view of the testimony of the plaintiff and others that the steel block had fallen from the table several times as the result of vibration, we think the definition of negligence by Mr. Justice Holmes in Schlemmer v. Buffalo, R. & P. R. Co., 1907, 205 U.S. 1, 27 S.Ct. 407, 409, 51 L.Ed. 681, is applicable here:

'* * * Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. * * *'

The defendant showed the plaintiff had used the identical bench on which he was working when injured since 1928, arguing it should not be held liable when he was finally hurt by the falling block. This has the sound of a plea of assumption of risk which is not allowable since the 1939 amendment, Act August 11, 1939, 45 U.S.C.A. Sec. 54. In Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 446, 87 L.Ed. 610, it was stated:

'* * * We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to 'non-negligence'. * * *' A like long use without accident was interposed in Margevich v. Chicago & N. W. Ry. Co., 1953, 1 Ill.App.2d 162, 116 N.E.2d 914, 917, which that court disposed of in the following language:

'Defendant, to sustain its contention that the equipment was reasonably safe, argues that plaintiff had used this same kind of scaffold for twenty-eight years and had never seen an accident result therefrom. The question is not what equipment defendant furnished, and plaintiff used, customarily, but whether there was evidence that the equipment and method were not reasonably safe. Chicago, R. I. & Pac. Ry. Co. v. Daugaard, 118 Ill.App. 67; Midland Valley R. Co. v. Bell, 8 Cir., 242 F. 803; Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905. This conclusion disposes of the argument with respect to the long use, without accident, of the method employed in straightening the grab iron.'

It seems if there is any evidence in the case to sustain a finding of negligence by a jury, whether it be established by direct evidence or reasonable inference, the United States Supreme Court will not allow an appellate court to overturn such verdict. See Bailey v. Central Vermont Ry., 1943, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Blair v. Baltimore & O. R. Co., 1945, 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497.

After a careful study of the record and the authorities we hold there was sufficient evidence of negligence calling for the submission of the case to the jury and the trial court did not err in declining to sustain the motion of the defendant for a directed verdict in its behalf.

Error is assigned because the plaintiff was allowed to introduce in evidence a mortality table showing his life expectancy. The defendant objected to its introduction on the ground there was no competent evidence showing permanent disability of the plaintiff.

The testimony of the medical experts was in conflict as to whether the injury was permanent, hence the trial court did not err in admitting such table. Thayer v....