Peterson v. Union Pacific R. Co

• Decision Date: 01 March 1932
• Docket Number: 4964
• Citation: 8 P.2d 627,79 Utah 213
• Court: Utah Supreme Court
• Parties: PETERSON v. UNION PACIFIC R. CO

8 P.2d 627

79 Utah 213

PETERSON v. UNION PACIFIC R. CO

No. 4964

Supreme Court of Utah

March 1, 1932

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by Alta v. Peterson, administratrix of the estate of John F Peterson, deceased, against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

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

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

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

OPINION

FOLLAND, J.

This is an action by plaintiff as administratrix of the estate of John F. Peterson brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for the death of John F. Peterson who was killed February 13, 1925, while employed by defendant on its interstate railroad. From a verdict and judgment in favor of plaintiff, defendant appeals. The deceased, John F. Peterson, was employed by the defendant as a section laborer on its tracks in Weber county. He had worked for defendant in this capacity for several years. At the point where the accident occurred, there is a cut in the side of the mountain. The wall immediately adjacent to the track is almost perpendicular for about 60 feet, and from that point there is a gradual slope up the mountain of approximately 33 degrees for several hundred feet. During the winter months, the alternate freezing and thawing of the water in the ground tends to loosen rocks on the mountain, and they sometimes roll down the mountain side. The accident occurred February 13, 1925, while deceased was clearing the track of rocks which had rolled down onto the right of way. It is claimed by the plaintiff that it was one of the duties of the section foreman to station himself at a point where he could command a view of the mountain side and to warn the men working on the track in this cut when any rock started rolling down the mountain side so that the men might seek shelter and protect themselves. The foreman immediately prior to the accident left the track where the men were working to consult with the roadmaster who was at a place on another track of the defendant at a point lower down the mountain. As he was returning, he saw the rock coming down the mountain about 20 feet above the cliff, and shouted, "Rock coming, look out." The warning, however, came too late. The deceased, who was raking rocks off the inner edge of the right of way, raised his head and started to get up, but was immediately struck in the head by the rock and almost instantly killed. The rock which struck deceased was identified as having originated at an igneous dike nearly 600 feet up the mountain side.

It is first urged by defendant that the cause of action sued upon is barred by the two-year limitation in the Federal Employers' Liability Act, not that the complaint was not filed within that time, but because the amended complaint, which it is claimed states a new and different cause of action, was not filed until July, 1928, or more than two years after the cause of action occurred, February 13, 1925. Defendant's objection is that the amended complaint sets out an entirely new act of negligence or cause of action, and is therefore barred.

It is contended by respondent that appellant cannot now raise the question of the two-year limitation, that it has waived this defense by failure to plead the statute of limitations either by way of demurrer or answer, and in support of its position cites Comp. Laws Utah 1917, §§ 6573, 6602 and 6469; Gulbranson v. Thompson, 63 Utah 115, 222 P. 590, and other Utah cases to similar effect. The action, however, was brought under the Federal Employers' Liability Act wherein it is provided (section 6 of the act [45 USCA § 56]) that "no action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued." This, therefore, is not a case which comes within the rule that the statute of limitations is waived unless pleaded. The act of Congress which gives the right of action also limits the time within which the action must be brought. In this class of cases it has been held that the commencement of the action within the prescribed time is a condition of the right itself, and, if condition as to time is not complied with, not only is the remedy barred, but the right itself ceases to exist. In such cases the objection may be relied on, although not specifically pleaded, and advantage of the objection may be taken by general demurrer, if by the complaint it is shown that the limitation has run. 2 Roberts, Federal Liabilities of Carriers (2d Ed.) pp. 1829 and 1830; Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226; Louisville & N. R. Co. v. Echols, 203 Ala. 627, 84 So. 827; Phillips Co. v. Grand Trunk W. R. Co., 236 U.S. 662, 35 S.Ct. 444, 59 L.Ed. 774; Kannellos v. Great Northern R. Co., 151 Minn. 157, 186 N.W. 389, second appeal 157 Minn. 505, 196 N.W. 280; Thornton Federal Employers' Liability Act (3d Ed.) 231. It follows, therefore, that the question of whether the amended complaint is within time under the circumstances of this case was properly raised by the demurrer to the complaint, and may now be reviewed by us, notwithstanding the statute of limitations was not specially pleaded.

The original complaint proceeded on the theory that the rock fell from the overhanging ledge left upon excavation of the right of way out of the mountain side, and specified the various acts of negligence of the defendant company as follows:

"(a) The defendant failed in his duty to provide the said Peterson with a safe place in which to perform his work.

"(b) The defendant negligently failed in its duty to warn the deceased or to inform him that it had not made an inspection of the said overhanging ledge.

"(c) The defendant carelessly and negligently failed to make an inspection of the said overhanging ledge after the passage of trains.

"(d) That it negligently and carelessly failed to remove from the said ledge and its vicinity any loose rocks and other material, well knowing that the same might and would fall from said cliff during thawing weather.

"(e) That it negligently failed to construct or maintain a suitable device for preventing loose rocks from falling from said ledge and injuring its employees.

"(f) That it negligently failed to keep the top of said cliff free from loose rock, and that it carelessly directed the said deceased to perform his work in the vicinity of the said overhanging ledge at a time when defendant knew, or in the exercise of reasonable care should have known, that rocks were liable to fall from said cliff by reason of the vibration of passing trains or by reason of the thawing temperature, both or either of which would tend or cause rocks to fall from the said cliff or ledge, and that because of the said negligence on the part of the defendant and as a result thereof the said Peterson was injured and died as hereinbefore alleged."

And also:

"Plaintiff further alleges that on the day upon which the said Peterson met his death as hereinafter alleged, there had been trains passing over the defendant's right of way, which caused vibrations tending to cause the rocks upon and near the face of said ledge of rock to fall at the point where the said deceased was injured; that during the time immediately preceding the said accident, there had been a thaw; that during thawing weather the rocks and other loose material were liable to and did fall from the said cliff, all of which was, or should in the ordinary exercise of care, have been known to the defendant; that the defendant, well knowing the dangers permitted and directed the said Peterson to work in the vicinity of and under said overhanging ledge of rock without taking any precaution to remove the loose earth and material from and in the vicinity of said ledge of rock and without placing a lookout to warn the said deceased in time to enable him to escape the danger from the falling rock."

The amended complaint proceeded upon the theory that the rock rolled down the mountain side from above the precipitous ledge, the allegations of defendant's duty in the premises being as follows:

"Plaintiff further alleges that because of the loose rocks and the nature of said mountain side along which said track was constructed as aforesaid, and because of the likelihood of rocks rolling down said mountain side and onto said track, there was great and grave and imminent danger of the rock so rolling striking employees who were required to, in the performance of their duties, work along and upon said track so extending along said mountain side as aforesaid, and that in order to properly safeguard said employees so required to work as aforesaid, it was the duty of said defendant to have some person watching said hillside for rocks rolling down the same, and to warn said employees so working along said track of the rolling of said rocks, in order that the said employees could avoid being struck by the same."

Both complaints have reference to the same circumstances resulting in death of the workman, that is, the deceased working on the track by the side of the precipitous cliff or overhanging ledge being struck by a falling rock resulting in death. The difference is in the point from which the rock came. That it came from above is alleged in both complaints; in the first, that it came from the ledge; and, in the second, that it came from higher up on the mountain side. In the first complaint, the negligence is stated to be failure to provide a safe place to work, and that no...