Roach v. Los Angeles & S. L. R. Co.

• Citation: 280 P. 1053,74 Utah 545
• Decision Date: 09 April 1929
• Docket Number: 4770
• Parties: ROACH v. LOS ANGELES & S. L. R. CO
• Court: Supreme Court of Utah

280 P. 1053

74 Utah 545

ROACH v. LOS ANGELES & S. L. R. CO

No. 4770

Supreme Court of Utah

April 9, 1929

Rehearing Denied October 1, 1929.

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by E. W. Roach, against the Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant appeals.

See also, 69 U. 530; 256 P. 1061.

REVERSED AND RENDERED.

George H. Smith, J. V. Lyle, R. B. Porter, and W. Hal. Farr, all of Salt Lake City, for appellant.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.

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

OPINION

STRAUP, J.

The plaintiff brought this action under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for personal injuries alleged to have been sustained by him in the employ of the defendant. It is admitted that the defendant was a railroad common carrier engaged in interstate commerce, and that the plaintiff was in its employ as a switchman in the yards of the defendant at Lynndyl, Utah, where the injury occurred in making a flying switch. It is alleged that, in making a flying switch of a car, a water tank car, it was the duty of the plaintiff to disconnect the car from the switch engine and then board it, to control and arrest its speed; that the engineer operating the switch engine with the car attached operated them at a negligent and excessive speed, at 20 miles an hour, failed to decrease the speed, and slow down on signals given him so to do by the plaintiff and by others, so that a reasonably safe opportunity or means to disconnect the car from the engine, or to board it after it was disconnected, to arrest its speed, was not afforded him, and while attempting to board it he was injured.

It was further alleged that, when the car was detached from the engine and about to enter the track on which it was to be switched, it was going at such speed that, unless arrested or the car stopped, there was "great and imminent danger" of causing "great and irreparable loss and damage to the property of the defendant," by the car colliding with other cars on the track, and that there was "great and imminent danger" that employees of the defendant about the yard and cars "would be greatly injured and perhaps killed by said collision," and the plaintiff, believing that the safety of other employees and great loss of property were imperiled if the speed of the car was not arrested and stopped, and that he could board the car and arrest its movement without injury to himself, attempted to do so.

The defendant denied the alleged negligence, the alleged peril, and that the plaintiff at the time of injury was engaged in interstate commerce, and alleged he was engaged in local or intrastate commerce, that he was himself guilty of negligence, which was the sole proximate cause of the injury, and that he assumed the risk.

The case was here on a former appeal. On the first trial, at the conclusion of all the evidence, the defendant interposed a motion to direct a verdict in its favor, on the grounds that the plaintiff at the time of the injury was not engaged in interstate commerce, insufficiency of evidence to show negligence on the part of the defendant, and that the evidence affirmatively showed that the negligence of the plaintiff was the sole proximate cause of the injury, and that he assumed the risk. The court granted the motion, but on the sole ground that the plaintiff was not engaged in interstate commerce. From a judgment of no cause of action, entered on the verdict, the plaintiff appealed.

The sole question presented on the appeal was whether the plaintiff was engaged in interstate commerce. Both parties by their briefs and arguments asserted that such was the only question presented and to be considered and determined. No attempt was made by the defendant, by assignment, brief, argument or otherwise, to defend the judgment or the ruling directing the verdict on any of the other grounds stated in the motion. Both parties presented, briefed, and argued the case on the theory that, if the court erred in directing the verdict on the ground on which it was directed, such ruling required a reversal of the judgment and remanding of the case. On a review of the record we thus considered but the one question so presented. In doing so we reached the conclusion that the evidence as to the character of the work performed by the plaintiff at the time of the injury was in conflict, and hence the question of whether the plaintiff was or was not engaged in interstate commerce required a submission of it to the jury on proper instructions. We thus reversed the judgment and remanded the case for a new trial. 69 Utah 530; 256 P. 1061. There may be found a statement of the evidence as to the character of the work performed by the plaintiff and the conflict in the evidence in such particular.

In accordance with the remittitur, the case was retried to another jury. At the conclusion of the evidence, the defendant again interposed a motion for a directed verdict, on all of the grounds stated in the motion on the first trial. The motion was overruled, and the case submitted to the jury, with instructions that, if they found the facts as shown by the evidence on behalf of the plaintiff, he was engaged in interstate commerce, but if the facts were not so found, or if found as shown by the evidence on behalf of the defendant, the plaintiff was not engaged in interstate commerce, and could not recover, regardless of all other issues. The court, however, also submitted to the jury all of the other issues, the charged negligence of the defendant, and the questions of contributory negligence and of assumption of risk. The jury rendered a verdict finding the issues in favor of the plaintiff and against the defendant, assessing his total damage in the sum of $ 15,000, but reduced it by $ 5,000 on the ground of contributory negligence, and thus fixed the amount of the verdict at $ 10,000, for which amount judgment was entered in favor of the plaintiff, from which the defendant has prosecuted this appeal.

By the filed assignments numerous errors are assigned: Overruling the motion to direct the verdict on all of the grounds stated in the motion; alleged errors respecting the charge in several particulars, and in refusing to charge as requested by the defendant; insufficiency of the evidence to support the verdict, specifying in such particular that the evidence was insufficient to show negligence on the part of the defendant, or to show that plaintiff was engaged in interstate commerce; that he was guilty of negligence which was the sole proximate cause of the injury, and that he assumed the risk. But in its brief and in argument the defendant presents for our review and determination but two questions: Whether on the undisputed evidence the plaintiff as matter of law was or was not engaged in interstate commerce; and whether he had or had not assumed the risk. Both parties, by their briefs and arguments, assert such to be the only questions presented for review and determination on this appeal. Not anything is presented or argued with respect to any of the other filed assignments. It is well settled in this jurisdiction that questions not assigned, or though assigned, but not briefed or discussed, will not be considered. Jensen v. Utah Railway Co. (Utah) 270 P. 349. We thus on this review are restricted to the two questions so presented and argued.

As to the question of whether the plaintiff was or was not engaged in interstate commerce, it is not contended that the evidence on the second trial was different from that on the first trial. Not anything in such particular is claimed, or pointed out, or urged. As appears by the opinion on the first appeal, Lynndyl is a division point. The defendant maintains two lines of railroad from Salt Lake City to Lynndyl; one, called the main line, running through Garfield and other points west of the Oquirrh Mountains, and the other to the east of them, through Provo and other points. From Lynndyl toward Nevada and California points, there is but one track or main line. At Lynndyl trains are broken up and cars switched in and out of them. The crew of which the plaintiff was a switchman was one of the crews doing that work. It switched all kinds of cars, interstate and intrastate, empty and loaded, took interstate and intrastate cars out of and put them in interstate and intrastate trains, and made up trains as the business and traffic required.

The plaintiff's shift was from 11 p. m. until 7 a. m. the next morning, and on the day in question his crew did that kind of work. Among other cars so switched was an oil tank car carrying interstate shipments, which with other cars was switched out of an interstate train arriving at Lynndyl at 3:10 a. m., and departing at 4:30 a. m., and switched on track No. 1 to be carried out, as contended by the plaintiff, by an interstate train called No. 256, a daylight freight train coming from points in California and Nevada to Lynndyl, and thence on to Salt Lake City, carrying interstate shipments, and arriving daily at Lynndyl from the west between 8 a. m. and 12 o'clock noon. Train No. 256 usually was what is called a "dead freight train." On the shift of plaintiff's crew an order was received at Lynndyl by the defendant's agent to fill the water tank car to be carried out on the defendant's main line towards Salt Lake City, by the first daylight dead freight train, to supply section men with water working on the defendant's main line. The order was communicated to the foreman of plaintiff's crew a short time before the crew went off duty at 7 o'clock a. m. The water tank...