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

• Decision Date: 31 July 1956
• Docket Number: No. 6034,6034
• Citation: 1956 NMSC 72,61 N.M. 314,299 P.2d 1090
• Parties: Cirilio RIVERA, also known as Cirilo Sunlga Rievera, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant, The A. T. & S. F. Hospital Association, Intervener.
• Court: New Mexico Supreme Court

Page 1090

299 P.2d 1090

61 N.M. 314

Cirilio RIVERA, also known as Cirilo Sunlga Rievera Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant The A. T. & S. F. Hospital Association, Intervener.

No. 6034.

Supreme Court of New Mexico.

July 31, 1956.

B. G. Johnson, E. L. Mechem, W. F. Kitts, Albuquerque, for appellant.

Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, Tibo J. Chavez, Belen, for appellee.

PER CURIAM.

Upon consideration of motion for rehearing, the original opinion is withdrawn and the following is substituted therefor.

COMPTON, Chief Justice.

This is an action for damages brought under the provisions of the Federal Employers' Liability Act, as amended, 45 U.S.C.A. Sec. 51 et seq., in which it is alleged appellant negligently failed to provide appellee a safe place to work. The pertinent provisions read:

Sec. 51. 'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * appliances, * * * track, roadbed, works, * * * or other equipment.

'Any employee * * * any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, after such commerce * * * shall be considered as entitled to the benefits of this chapter.'

Issue was joined and a jury returned its verdict for $68,500 in favor of appellee. Appellant on appeal is seeking a review of alleged errors.

The decisive questions are: (a) whether appellee was engaged in employment in furtherance of, or which directly, or closely and substantially affected interstate commerce, and (b) whether appellant was negligent in failing to provide appellee a safe place to work as contemplated by the Act.

Both questions require an affirmative answer. Appellee was an extra gang laborer employed by appellant in the repair and replacement of its tracks in the vicinity of Vaughn, New Mexico. As a condition of his employment, appellant furnished him board and sleeping quarters on its work train. The work train was made up of some 25 cars, consisting of bunk cars, work cars and cars in which meals were served appellee and others. On these facts, there can be no question that appellee's employment was in furtherance of interstate commerce. Delaware L. & W. R. Co. v. Mostyn, 2 Cir., 160 F.2d 15; Id., 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Atlantic Coast Line R. R. v. Meeks, 30 Tenn.App. 520, 208 S.W.2d 355; Id., 333 U.S. 827, 68 S.Ct. 453, 92 L.Ed. 1112; Atlantic Coast Line R. Co. v. Smalls, 4 Cir., 216 F.2d 842; Small v. Atlantic Coast Line R. Co., 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740; Id., 349 U.S. 907, 75 S.Ct. 579, 99 L.Ed. 1243. Compare Atchison, T. & S. F. R. Co. v. Wottle, 10 Cir., 193 F.2d 628.

Bearing upon the question of negligence, the work train was moved into Vaughn in February, 1954. The cars were spotted immediately north of an abandoned roundhouse, on a track paralleling and immediately south of the east and west main line track. Located about 35 feet south of the work train, 6 or 7 outdoor toilets were spaced along for the convenience of employees. On February 21, 1954, appellee and various other employees occupied one of the cars as sleeping quarters. On that day, however, other occupants were away. Appellee visited for a while with occupants of other cars, after which he returned to his own quarters around 8:00 P.M. He retired shortly thereafter, but about 9:00 P.M. found it necessary to go to one of the outside toilets. It was dark and the area was unlighted. As he returned to his car, he was approached by two men, presumably hobos, who had gotten off a freight train which he had observed coming into Vaughn from the west just previously. They first asked him for a smoke and money, and being advised that he had neither, they grabbed him by the arm, began twisting it, and at the same time pushed him toward the train which had just come to a stop. One of the men said, 'I will throw him under the tracks' and 'I will kill him.' They assaulted him further and as a result, he was rendered unconscious. When he regained consciousness, the freight train was gone. Its wheel had evidently rolled over his left hand, causing the loss of all but two fingers. The skin of the hand was missing from the wrist down, except from the ring and little finger.

While the Act does not make the employer the insurer of the safety of its employees, plainly, it is the duty of the employer to furnish the employees a safe place to work. A review of the record convinces us that the evidence warranted the jury in reaching its conclusion that appellant was negligent in the respect charged. There is evidence that the abandoned roundhouse was more or less a rendezvous for hobos. They frequented it at will as a place to make coffee, eat their meals, and for other purposes. Previously, a guard in the area had been disarmed, presumably by hobos. But, at the time of the incident in question, the area was unattended by guards and had been for several months. The presence of suspicious characters was such that appellant's yardmaster had requested and was given an official commission to carry side arms for his protection. Lillie v. Thompson, 6 Cir., 173 F.2d 481; Smalls v. Atlantic Coast Line R. Co., supra; Delaware, L. & W. R. Co. v. Mostyn, supra. Also compare Schulz v. Pennsylvania Railroad Co., 76 S.Ct. 608.

Finally, a twofold attack is made on the verdict; first, passion and prejudice; second, it is attacked as excessive. In this respect, judicial control of the verdict is primarily a matter of consideration of the trial court, and both on motion in arrest of judgment and motion for a new trial, these questions were reviewed and decided against appellant. Cienfuegos v. Pacheco, 56 N.M. 667, 248 P.2d 664; Lopez v. Atchison, T. & S. F. Ry. Co., 60 N.M. 134, 288 P.2d 678. At first glance the verdict does seem over liberal, but we cannot say it is so arbitrary as to show passion or prejudice nor can we say as a matter of law that the verdict is excessive. Padilla v. Atchison, T. & S. F. Ry. Co., 61 N.M. 115, 295 P.2d 1023; Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507; Hall v. Stiles, 57 N.M. 281, 258 P.2d 386; Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041.

Viewing the evidence in an aspect most favorable to appellee, we think the verdict has substantial support in the evidence and consequently should not be disturbed. At the time of his injury appellee had a life expectancy of 15.77 years and was earning approximately $250 per month. Appellant argues that had he worked continuously thereafter, his total earnings would not exceed $48,000. Be that as it may, the argument fails to account for pain and suffering. On regaining consciousness, he first noticed a burning pain in his hand which was bleeding freely. He ran to one of the bunk cars screaming 'some tramp beat me up.' He was given first aid and sent to the Sante Fe Hospital in Albuquerque, where he remained until April 14, 1954. At first it was felt that the remaining fingers could be saved. He returned to his home in Ballenger, Texas, where he received treatment from local physicians, and during which time he continued to suffer great pain. Later, an amputation of the hand was deemed advisable, and some 6 weeks later he was furnished transportation back to the Santa Fe Hospital at Albuquerque. The morning following his readmission, he was asked to leave without the amputation as he had used his hospital allowance. He was told to go to a county hospital if he felt the need of an operation. He left the hospital and again returned to his home in Ballenger and sought help from the Welfare Department of...