Rogers v. Davis

Decision Date29 May 1924
Citation228 P. 330,39 Idaho 209
PartiesE. J. ROGERS, Administrator of the Estate of HARRY BARR, Deceased, Respondent, v. JAMES C. DAVIS, Director-General of Railroads and Agent of the President, Appellant
CourtIdaho Supreme Court


1. Under the federal Employers' Liability Act, U.S. Comp Stats., secs. 8657-8665, a temporary departure from the place of employment, not materially interfering with the performance of the employee's duty, does not deprive him of his character as an employee, nor absolve the employer from the duty of care toward him as he is returning to his post or place of employment.

2. A railroad company owes a duty to employees whose presence may be reasonably anticipated at any place in its yards to keep such place reasonably clear of dangerous accumulations of snow and ice.

3. Matter in mitigation of general damages need not be pleaded but is admissible under the general issue.

4. Under the federal Employers' Liability Act, evidence of contributory negligence is admissible in mitigation of damages without pleading.

5. The defense of the general issue and contributory negligence may both be raised under our code.

6. The action under the federal Employers' Liability Act is not maintainable for the benefit of the estate nor for the benefit of dependent members of the family generally but only for the benefit of those expressly mentioned in the act.

7. The action being brought for the benefit of certain members of the family mentioned in the federal Employers' Liability Act, evidence as to other dependents is not admissible.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.

Action for damages under federal Employers' Liability Act. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs to appellant. Petition for rehearing denied.

George H. Smith, H. B. Thompson and John O. Moran, for Appellant.

A servant may assume the risk of the obvious slippery condition of platforms or other places upon which he is required to work. (Tuttle v. Detroit G. H. & M. R. Co., 122 U.S. 132, 7 S.Ct. 1166, 30 L.Ed. 1114; Adkins v Atlantic etc. R. Co., 27 S.C. 71, 2 S.E. 849; Sellers v. Chicago & N.W. R. Co., 87 Neb. 322, 127 N.W. 125.)

Where evidence of contributory negligence develops upon the trial the question should be submitted to the jury, irrespective of pleadings. (Pittsburgh etc. R. Co. v. Cole, 260 F. 357; Owl Creek Coal Co. v. Goleb, 210 F. 209, 127 C. C. A. 27.)

Contributory negligence is of the essence of the federal Employers' Liability Act, and the right thereby created is diminished in proportion to the servant's negligence, irrespective of the pleadings. (Seaboard Air Line R. Co. v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069; Kansas City So. R. Co. v. Jones, 241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943; Snyder v. Great Northern Ry. Co., 88 Wash. 49, 152 P. 703.)

In an action under the federal Employers' Liability Act it is error to admit evidence of dependent relatives except those for whose benefit the action is brought. (Silver King etc. Co. v. Kendall, 23 Ariz. 39, 201 P. 102; In re Stone, 173 N.C. 208, 71 S.E. 852.)

An action under the federal Employers' Liability Act is not maintainable either directly or indirectly for the benefit of the estate, nor for the benefit of dependent members generally. (Thomas v. Chicago etc. R. Co., 202 F. 766; Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392.)

Actionable negligence in failing to maintain safe premises does not exist in favor of persons generally, but only to those whose presence the owner is required to anticipate at the place complained of. (20 R. C. L. 47; Shearman & Redfield on Negligence, 6th ed., secs. 6, 10, 188; Hobbs v. Great Northern Ry. Co., 80 Wash. 678, 142 P. 20, L. R. A. 1915D, 503; Garland v. Boston & Maine R. R., 76 N.H. 556, Ann. Cas. 1913E, 924, 86 A. 141, 46 L. R. A., N. S., 338; United States Express Co. v. Everest, 72 Kan. 517, 83 P. 817; Erie R. Co. v. Van Buskirk, 228 F. 489, 143 C. C. A. 71.)

Where a correct instruction relative to the issue is requested, it is error not to give it unless a correct instruction on that subject is given by the court. (Breshears v. Callender, 23 Idaho 348, 131 P. 14.)

The person who has departed from the service of the master in the performance of private pursuits is not, during such time, employed in interstate commerce nor entitled to recover under the federal Employers' Liability Act. (Hobbs v. Great Northern R. Co., supra; Chesapeake & O. Ry. Co. v. Harmon's Admr., 173 Ky. 1, Ann. Cas. 1918B, 41, 189 S.W. 1135; Illinois Cent. Ry. Co. v. Archer, 113 Miss. 158, 74 So. 135.)

Recovery under the federal Employers' Liability Act for the death of a railway employee while engaged in interstate commerce is limited to compensating those for whom the administrator may rightfully sue, and for the pecuniary loss actually sustained by them. (Gulf C. & S. F. R. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 784.)

Such damages should be limited to the present cash value of the future benefits of which the beneficiaries were deprived. ( Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 633, 60 L.Ed. 1117; Chesapeake & O. R. Co. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124.)

Peterson & Coffin, for Respondent.

It is the duty of the railroad company to keep its yards free from accumulations of ice and snow in such quantities as to be a menace to its employees, and to permit such accumulations is negligence. (4 Thompson on Negligence, sec. 4335; Sankey v. Chicago R. I. & P. Ry. Co., 118 Iowa 39, 91 N.W. 820; Rifley v. Minneapolis & St. L. Ry. Co., 72 Minn. 469, 75 N.W. 704; Gibson v. Iowa Central Ry. Co., 115 Minn. 147, 131 N.W. 1057; Cregg v. Chicago & W. M. Ry. Co., 91 Mich. 624, 52 N.W. 62; Lawson v. Truesdale, 60 Minn. 410, 62 N.W. 546.)

Servant does not assume risk of the negligence of the master. ( Union P. Ry. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766.)

Where a question of contributory negligence was not presented by either the pleadings or proof, it should not be presented to jury. (Goure v. Storey, 17 Idaho 352, 105 P. 794; Thayer v. Denver & R. G. R. R. Co., 21 N. M. 330, 154 P. 691; 29 Cyc. 583; 5 Am. & Eng. Ency. of Pl. & Pr. 11; Watkinds v. Southern P. Co. (D. C.), 38 F. 711, 4 L. R. A. 239; Birsch v. Citizens' Elec. Co., 36 Mont. 574, 93 P. 940; Benjamin v. Metropolitan etc. R. R. Co., 245 Mo. 598, 151 S.W. 91; Cain v. Winterstein, 144 Mo.App. 1, 128 S.W. 274; Felton v. Aubrey, 74 F. 350, 20 C. C. A. 436; Houston & T. C. R. R. Co. v. Patterson, 20 Tex. Civ. App. 255, 48 S.W. 747; Scattergood v. Ingrain, 86 Ohio St. 76, 98 N.E. 923; Coffman v. Singh, 49 Cal.App. 342, 193 P. 259; Colonial Refining Co. v. Lathrop, 64 Okla. 47, 166 P. 747, L. R. A. 1917F, 890; Cogsdell v. Wilmington & W. R. Co., 132 N.C. 852, 44 S.E. 618; Surman v. Cruse, 57 Mont. 253, 187 P. 890-893.)

Under the federal Employers' Liability Act proper measure of damage in this case is pecuniary loss to parents of the decedent. (Chesapeake v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117.)

Temporary departure from place of employment does not deprive interstate employee of character as such. (North Carolina Ry. Co. v. Zachary, 232 U.S. 248. Ann. Cas. 1914C, 159, 34 S.Ct. 305, 58 L.Ed. 591; Graber v. Duluth S. S. & A. Ry. Co., 159 Wis. 414, 150 N.W. 489; Padget v. Seaboard Airline Ry., 99 S.C. 364, 83 S.E. 633; affirmed in 236 U.S. 668, 35 S.Ct. 481, 59 L.Ed. 777.)

MCCARTHY, C. J. Dunn and Wm. E. Lee, JJ., concur.



This action is brought under the act of Congress, U.S. Comp Stats., secs. 8657-8665, commonly known as the federal Employers' Liability Act. On December 30, 1919, Harry L. Barr, a fireman in the employ of the Oregon Short Line Railroad Co., left Pocatello, Idaho, in the performance of his duty, on a freight train moving in interstate commerce. At American Falls, Idaho, there are three railroad tracks, the main line track, closest to the station, and two tracks parallel and immediately south of it. These constitute what may be called a railroad yard, the additional tracks being used for the purpose of switching trains so that they may pass one another. As the train approached American Falls and neared this yard, the engine was detached at a point about one-half mile from the depot, and proceeded to the water-tank near the depot where water was taken, the fireman Barr performing work in connection therewith. After doing this he left the engine and went across the street to two stores, where he purchased some chocolate, candy and mentholatum. Meanwhile the engineer backed the engine up to where the rest of the train was waiting. It was coupled to the train and started west, the entire operation taking about ten minutes. There is a conflict in the evidence as to which track the train was running on. Respondent alleged in his complaint that it was running on the first track south of the main line track; the jury must have so found; and, in spite of the conflict, there is sufficient evidence to sustain such finding. As the train was approaching the depot, moving at a rate of speed variously estimated by witnesses from six to ten miles per hour, Barr ran across the street from the...

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