Pauly v. McCarthy

• Decision Date: 18 February 1946
• Docket Number: 6846
• Citation: 109 Utah 398,166 P.2d 501
• Court: Utah Supreme Court
• Parties: PAULY v. McCARTHY et al

166 P.2d 501

109 Utah 398

PAULY v. McCARTHY et al

No. 6846

Supreme Court of Utah

February 18, 1946

Rehearing Denied May 31, 1946.

Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.

Action under the Federal Employers' Liability Act 1 et seq., as amended, 45 U.S.C. A. 51 et seq., by Harry O. Pauly against Wilson McCarthy and another, trustees of the Denver & Rio Grande Western Railroad Company, for injuries sustained when the plaintiff, a conductor, fell while alighting from the caboose of a freight train. From the judgment, the defendants appeal.

Reversed with instructions.

Farnsworth & Van Cott and Grant H. Bagley, all of Salt Lake City, for appellants.

Rawlings Wallace & Black, of Salt Lake City, for respondent.

Wolfe Justice. Larson, C. J., and McDonough, J., concur. Turner, Justice (dissenting), Wade, Justice (dissenting).

OPINION

Wolfe, Justice.

Appeal from a judgment under the Federal Employers' Liability Act in favor of plaintiff. Plaintiff, who was employed by defendant in interstate commerce as a conductor on a freight train proceeding over appellants' line westerly out of Glenwood Springs to Grand Junction, Colorado, was injured by a fall when he alighted in the nighttime from a caboose, which was standing on a bridge or trestle so narrow on the south side as to afford no foothold to one getting off the train at that point.

Conflict in the evidence is very limited and, as we view it, unimportant. The undisputed facts are as follows: The accident happened about 11:50 p. m. on January 27, 1944, between the switches on the passing track at Chacra, Colorado. Shortly after leaving Funston, which is six miles east of Chacra, Pauly, the conductor, and Ventura, the rear brakeman, who were riding in the caboose, noticed sparks flying from a car about 15 or 20 car lengths ahead of the caboose. This was ordinarily a sign that the brake shoes were sticking and necessitated stoppage of the train. By means of a red fusee placed outside of the window of the cupola of the caboose Pauly signalled the engineer to stop the train. The train consisted of 86 cars, the engine and the caboose and was somewhere between 3870 and 4300 feet long. The fireman in the engine also noticed the sparks flying from the wheels. The head brakeman acknowledged the stop signal by motion of an electric hand lantern. The engineer stopped the train on the main track opposite and south of the passing track at Chacra at a point which put the caboose on a bridge spanning North Canyon Creek. The distance between the east and west switches of the passing track at Chacra is about 6600 feet. The bridge is 2000 feet west of the east switch. The engine was thus somewhere between 3870 feet to 4300 feet west of the bridge. The engineer testified it was between 600 and 700 feet east of the block signal at the west end of the passing track.

The bridge is approximately 26 feet wide and 92 feet 6 inches long. The main line track is south of the passing track. The distance between the north rail of the main track and the south rail of the passing track is approximately 12 feet. The distance between the south rail of the main line track and the outside or southern edge of the bridge is 2 feet 9 inches. The overhang of an ordinary freight car or caboose is approximately 2 feet 6 inches. The lowest steps from the platforms at each end of the caboose reach to the edge of the overhang but not beyond.

Pauly, at the time and in the darkness, after the train had stopped and while the caboose was standing on the bridge, released his hand from the hand bar on the side of the caboose and dropped off the steps of the front (west) end of the caboose into space past the south edge of the bridge down to the creek bed about 17 feet below the bridge and was severely injured. There were no lights showing the presence of the bridge and no catwalk on the south side of the bridge but there was a walk over the bridge between the main and the passing track. Had Pauly stepped off the north side of the caboose he would have reached footing on this plank walkway. The night was quite dark. The roadbed was of black ballast which made it indistinguishable from the black timbers of the bridge. It was just beginning to snow.

Pauly, at the time of the accident, was 36 years of age. He had been crossing over this particular bridge for seven years in both day and nighttime; had, he estimated, crossed the bridge 1000 times and had walked over the bridge between the tracks perhaps fifty times, ten of which may have been at night.

The action is brought under the Federal Employers' Liability Act as amended in 1939, 45 U.S.C. A. § 51 et seq., eliminating assumption of risk as a defense.

The complaint alleged negligence on the part of defendants as follows:

"A. That at said time and place the defendants carelessly, recklessly and negligently so operated and maintained their tracks, roadbed and equipment and in particular the bridge which spanned the creek between the switches at Chacra, Colorado, as to cause plaintiff while acting in the course of his employment to be hurled headlong from said bridge onto the bed of the creek below, thereby and thus causing him to suffer the injuries and damages herein complained of.

"B. That the defendants, and each and all of them, negligently, carelessly and recklessly failed and neglected to furnish plaintiff a safe place whereon and wherein to perform the duties necessarily incident to his said employment in this: that said defendants well knowing that their passenger and freight trains were customarily and ordinarily stopped upon defendants' main line and passing tracks between the east and west switch points at Chacra, Colorado at all times of the day and night and in all kinds of weather, and that it was usual, customary and necessary for members of various train crews to pass along said trains while they were so stopped upon said main line and said passing track for the purpose of examining said trains and the various cars therein, and that said bridge in darkness was indistinguishable, dangerous and hazardous, nevertheless wholly failed to make said bridge safe and wholly failed and neglected to build, construct and maintain a walk with handrails on the sides of said bridge and did wholly fail and neglect to provide any lights or markers to indicate the presence or the dimensions of said bridge and did wholly fail and neglect to provide any other means whatsoever to give warning of the existence or the dangers of said structure, or to protect and shield their employees from the dangers thereof, as a result whereof the plaintiff while in the discharge of his duties was caused to and did fall headlong from the caboose of his said train over the edge of said bridge and onto the bed of said creek resulting in the damages and injury to him as herein complained of."

There is no evidence in the record to support the allegations of paragraph 9A. The plaintiff was not caused to be hurled from the bridge by the operation of the train, nor by the negligent maintenance of tracks, bridge or roadbed. The train had stopped. The evidence is conclusive on the fact that Pauly was under the impression that the caboose had entirely passed over the bridge; that he did not use his lantern which he had on his arm to make any examination of the place where he was to alight; that -- giving him the benefit of that part of his testimony most favorable to himself -- he "glanced down; it looked black like the road-bed and I just stepped off." There is no question as to Pauly's negligence. The jury found that he was guilty of contributory negligence and after finding his damage at $ 75,000, the full amount prayed for, subtracted $ 25,000 as the damage attributable to his negligence, leaving a net verdict of $ 50,000, which the court reduced as a condition of refusing a new trial to $ 34,500.

1. Were the passing tracks at Chacra a place to work: Was the region in between switches at Chacra a "place to work" as is meant by that term in the law of negligence? There were no industries in that locality or any spurs or sidings on which switching was done. There was only a passing track. The main road was single tracked. The passing track was one of many on the road to take care of train "meets." It was in Centralized Traffic Control territory, which means that the trains are let in and out of the passing track by an operator without necessity of the local crew having to get off and throw switches. When there is trouble with the moving equipment on the road and it is possible to reach the passing track at Chacra the train moves in there so as not to hold up traffic. It is a fair inference that such sensible procedure is followed anywhere in single track territory. Undoubtedly if the trouble is such as will not permit the train to proceed into a passing track for inspection and remedy, the matter must be attended to at once on the main track. There is nothing to show that the procedure is any different at the Chacra passing track than at any other passing track when a train in trouble is moved there for inspection and remedy. Indeed the same sort of inspection and remedy in regard to hot boxes, sticking brakes, break-in-twos, broken air hose, might have to be made anywhere on the main line if a passing track could not be reached. The Chacra passing track was a more favorable place to stop than many sidings because it was a "high ball" station, viz., it enabled signals from the rear to be seen at the engine which was not the case in many parts of the road where the tracks curved through the mountains. But it would be only good fortune in that respect that the trouble or its discovery occurred shortly before coming into Chacra.

Ventura,...