Pulos v. Denver & R.G.R. Co.

• Decision Date: 09 February 1910
• Docket Number: 2074
• Citation: 107 P. 241,37 Utah 238
• Parties: PULOS v. DENVER & RIO GRANDE RAILROAD COMPANY
• Court: Utah Supreme Court

107 P. 241

37 Utah 238

PULOS v. DENVER & RIO GRANDE RAILROAD COMPANY

No. 2074

Supreme Court of Utah

February 9, 1910

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Michael Pulos against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED.

Van Cott, Allison & Riter for appellant.

P. T Farnsworth, Jr., and O. W. Carlson for respondent.

STRAUP C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

This is an action brought to recover damages for alleged personal injuries.

The plaintiff, who was an employe of the defendant, was engaged, with others, in loading steel rails on flat cars. While loading a rail it slipped off a car and struck and injured him. The accident occurred in Colorado. The plaintiff alleged that the rails were improperly and negligently piled on the car; that the defendant failed to provide braces on the side of the car; that the foreman of the defendant in charge of the work negligently ordered the plaintiff and others to lift a crooked rail from a ditch and throw it on the car; and that, by reason of conditions occasioned from the manner in which the rails were piled, and the absence of braces, a rail which was thrown on the car slipped off and struck the plaintiff, who, because of a ditch and of a space of but five feet between the car and a precipitous mountain to the rear of him, could not make his escape after the rail was thrown and before it struck him. He also alleged that in Colorado the doctrine that a master is not responsible for an injury sustained by his servant through the negligence of a mere fellow servant was abrogated by statute, and that under the law of that state the defendant was liable for the injury sustained by the plaintiff, though solely caused by the carelessness or negligence of a mere fellow servant to the same extent and in the same manner as though the injury had been occasioned by the personal negligence of the defendant. The answer contained a general denial and pleas of assumption of risk, contributory negligence, and fellow service. The case was tried to a jury. A verdict was rendered for the plaintiff. The defendant appeals.

The material facts are: The defendant, near Ruby, in Colorado, rebuilt its tract by removing old rails and replacing them with new ones. The old rails, when they were removed, were strung along the track. At the time in question the defendant was engaged in loading the old rails on three flat cars pushed along the tract by an engine operated by a train crew. Two gangs of men, each consisting of about fourteen men, were engaged in loading the rails, one on each side of the car. The plaintiff and the other workmen with him were Greeks. The work was in charge of, and was directed by, a boss or foreman. The gang of fourteen men of which plaintiff was one, with their hands, lifted the rails, one at a time, weighing 650 pounds, and threw them on the cars. Two men on the car with bars placed the rails in position lengthwise the car after they had been thrown on. Other men picked up angle bars and other material which also were thrown on the cars. The foreman gave his orders and directions to an interpreter on the car, who repeated them to the men loading the rails. The rails were strung along the track about thirty feet apart. When the cars were moved to a place where the rails were lying, the men took hold of one of them, and upon a signal given by one of the men, it was raised to the desired position, and then upon another signal, also given by one of the men, it was thrown on the car. Upon a signal given by the foreman to the conductor, the train was then pushed along where other rails were lying, and the operation repeated. The loading of the rails began in the morning by first loading the car nearest the engine. The middle car was then loaded. The plaintiff was injured between two and three o'clock in the afternoon, and while the men were loading the last car. At places where the surface of the ground was about level with the ties the rails were raised to just below the chin and then thrown. At such places the men loading the rails could easily see them on the car, and observe the manner in which they were placed and adjusted, and, after a rail was thrown on the car, they looked at it until it was adjusted by the men on the car. They then went to another rail. When the men on the car gave the signal "all right," the men on the ground lifted the rail and threw it. The track generally was straight. The rails loaded on the first two cars were straight. A car load consisted of about 120 rails. When a car was about half loaded, angle bars were placed on the side of the car for braces. That was done when the first two cars were loaded. There was an ample supply of bars for that purpose on the cars. When the plaintiff received his injury, about forty-eight straight rails and three crooked rails had been loaded on the last car. The crooked rails spoken of had but a slight curve, a bulge in the center from an inch to an inch and three-quarters. The forty-eight straight rails were first loaded on the cars and placed lengthwise, and in the center, of the car. Before the crooked rails were loaded, there was then a space of about a foot and a half on the floor of the car between the rails and the side of the car nearest the men loading the rails. At the place where the curved rails were lying there was a ditch, the bottom of which was about two feet below the level of the ties. At the rear of the men there was a precipitous mountain about one hundred feet high. The space between the mountain and the car was about five feet. When the place was reached where the crooked rails were lying, the interpreter suggested to the foreman that the angle bars or braces had better be placed on the car. The interpreter and some of the men loading rails also suggested to the foreman that the rails at that place had better be carried to and loaded from the other side of the car where there was no ditch and no embankment. The foreman told the interpreter that it was not necessary to do so; that there were but a few rails at that place; that, when they were loaded, they would come to a good place, and to throw them on. The interpreter thereupon told the men that the boss said "there aren't very many rails there, just three of them--throw them on." The men thereupon proceeded to load the rails. Some of the witnesses testified that the car was about two feet above the heads of the men loading the rails. The rails were lifted, one at a time, by the fourteen men, the plaintiff being the fourth from the end, and were raised above their heads, and then thrown on the car.

The manner in which they were thus thrown on the car is best told in the language of the interpreter, who was a witness, and who testified, in behalf of plaintiff. The material parts of his testimony on this point, as they appear in the printed abstract of the record, are: "I saw the first curved rail thrown up from his (plaintiff's) side. It hit against the side of the straight rails, and then slid down onto the vacant space on the floor, which was about a foot and a half in width. The second curved rail also hit on the side of the straight rails and slid down. The third curved rail came up just the same as the other two, and slid down on top of the other two. It slid down from the straight rails onto the curved rails and stayed there. There were two men on top of the car at each end who had forks, and, if the rail didn't lie good, they would turn it. These men twisted that third rail and put it with the ball up on top of the two curved rails lying on the floor of the car. I saw Mike (plaintiff) and the men with him pick up the fourth curved rail down in this ditch. The top of the flat car stood about two feet higher than his head. The last rail thrown was a crooked rail, the same as the other three. I saw the rail land on the car. It hit on the side of the straight rails, and then slid down. It didn't stay on the car. The three rails that were thrown just before struck upon the side of the straight rails that were piled along the center of the car and then slid down and into place. The rail that injured the plaintiff hit the side of the straight rails the same as the others, but slid down. There was no place to catch on, no empty place the same as the others. The other three caught the empty space. It struck upon the straight rails at the same place, in the same manner as the former rails that had been thrown up. It slid down one end first and slipped right off the car, because it had no empty place on the car. It hit on the sides and slipped down on top of the others, of the flange of the other rails, and then fell down. The top of the car had been covered by other rails, except ten inches. This is the reason I give why the rail slipped off. There was no difference in the way in which it was thrown. It struck in the same place, in the same way. There were no braces along the side of the car, no obstructions of any kind to prevent rails from slipping off. There were braces, angle bars, on these other cars." When the men threw up "this first crooked rail, they looked at it but it didn't fall down. It slid down on the car, but not off. It slid down onto the vacant space on the flat car. The men could see this. It stayed there, and they saw the rail stay there. Then they picked up the second crooked rail, and threw it in the same manner. It hit just the same as the first one, and slid down on the floor the same as the first one. I don't know whether the men saw this, because I was standing on the car. But I could see their heads, and I saw the men looking at it. They threw the rail up, and then looked at it. They could see it...