Port Angeles Western R. Co. v. Tomas

• Decision Date: 25 November 1929
• Docket Number: No. 5871.,5871.
• Citation: 36 F.2d 210
• Parties: PORT ANGELES WESTERN R. CO. v. TOMAS.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.2d 210 (1929)

PORT ANGELES WESTERN R. CO. v. TOMAS.

No. 5871.

Circuit Court of Appeals, Ninth Circuit.

November 25, 1929.

Ira Bronson, H. B. Jones, and R. E. Bronson, all of Seattle, Wash., and Lewis & Church, of Port Angeles, Wash., for appellant.

John M. Boyle, Jr., and Edwin H. Flick, both of Seattle, Wash., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and LOUDERBACK, District Judge.

DIETRICH, Circuit Judge.

In the forenoon of November 19, 1927, while working as a section hand in the repair of appellant's railroad track, appellee was caught underneath a falling tree and suffered severe injury. Appellant was engaged as a common carrier in interstate commerce, and hence in bringing this suit to recover damages appellee invoked the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59). The verdict was in his favor, and from an appropriate judgment thereon the defendant prosecutes this appeal.

The record discloses no objections or exceptions respecting the introduction of evidence, or the instructions given or refused, other than the refusal to grant appellant's request that a verdict be directed in its favor. Hence the only question for our consideration is whether the evidence is such that as a matter of law plaintiff is not entitled to recover. Appellant asserts two propositions: First, that the evidence was insufficient to establish any negligence upon its part; and, second, that appellee assumed the risk. It would seem that the positions now taken by the parties are measurably inconsistent with certain allegations of their pleadings, but, inasmuch as upon both sides the cause was tried without objection to the evidence received and appellant's motion for a directed verdict challenged only the sufficiency of the evidence, our consideration may properly be confined to the issues made by the evidence.

The accident occurred a few miles out from Piedmont in the state of Washington. There was testimony for the appellant tending to show, and for the purposes of decision we shall assume, that its right of way was 100 feet wide, 50 feet on each side of the center of its railroad track; that for the most part it extended through a timbered country and had been cleared; that at the point in question the roadbed was on a hillside, resulting in a cut on one side and a fill on the other; that the tree which fell stood between 75 and 100 feet from the track, upon the uphill side off the right of way, was approximately 18 inches in diameter and 100 feet high, and was surrounded by undergrowth and smaller trees. Upon some of these points the testimony is indefinite or conflicting, and with propriety the jurors could have found less favorably to appellant, but they are not deemed of vital importance, and hence we assume the facts to have been approximately as stated.

Passing to the more material features of the case, there was substantial evidence tending to show that during the night preceding the accident a very heavy wind had prevailed, and during the morning of the 19th, up to the time of the accident, it continued, although possibly somewhat abated, with intermittent gusts or "puffs" of great violence. Mingled with it was rain, and under its impact the tops of the trees swayed to such an extent as to engender in the minds of the workmen a feeling of uneasiness, if not of fear. There was also credible testimony tending strongly to show that some of the men in the gang expressed their concern to the foreman and suggested it would be better to go back to camp awhile, or at least to work at some other part of the road where there was less peril; that in substance the foreman assured them there was no danger, that the company insisted that repairs be made at that point without delay, and that those who were unwilling to go ahead with the work would be discharged. True, as a witness for appellant, the foreman put in a denial to a part of this testimony and sought to qualify other parts. But upon a motion for a directed verdict the court was bound to accept the testimony most favorable to plaintiff; and, besides, the testimony of the foreman was not highly convincing. In one breath he said: "I knew the men were going to work (that morning) under the trees, but I didn't think there was any danger." "I did not feel a bit uneasy at all about it." And then: "As we came along to work that morning we found one tree along the track that blew down the night before and we took that down." He admitted that the trees were swaying violently at the point where the accident occurred, and testified that he called that fact to the men's attention and said to them, "When these puffs come, boys, kind of watch out." The tree in question apparently was taller than all the others in the immediate vicinity and fell across the track as a result of being uprooted. To what extent, if at all, the process of uprooting had progressed during the gale of the night before is not shown. In so far as appears, no investigation of its condition was made, and no watch was set to the end that the men could be warned instantly in case there were indications that it was going to fall.

Upon the whole, we are of the opinion that the evidence was such as to require submission to the jury of the question whether appellant discharged its obligation to exercise reasonable care in seeing to it that the place where appellee was required to work was not attended with unnecessary peril. Liberty Bell Gold M. Co. v. Smuggler-Union M. Co. (C. C. A.) 203 F. 975; McIntyre v. Modern Woodmen (C. C. A.) 200 F. 1; Norfolk Ry. Co. v. Hauser (C. C. A.) 211 F. 567; Shank v. Great Shoshone, etc., Co. (C. C. A.) 205 F. 833; Sandidge v. Atchison, etc., Ry. Co. (C. C. A.) 193 F. 867; Texas, etc., Ry. Co. v. Cox, 145 U. S. 606, 12 S. Ct. 905, 36 L. Ed. 829; Kreigh v. Westinghouse, etc., Co., 214 U. S. 249, 29 S. Ct. 619, 53 L. Ed. 984.

Nor do we think that it can be...