Rogers v. Southern Pac. Co.
| Decision Date | 30 July 1959 |
| Citation | 342 P.2d 258,172 Cal.App.2d 493 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kula Charlotte ROGERS, Administratrix of the Estate of Jack E. Rogers, also known as Jack Ervin Rogers, deceased, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 18357. |
Ryan & Ryan, Thomas C. Ryan, Thomas Michael Ryan, San Francisco, for appellant.
Bledsoe, Smith, Cathcart, Johnson & Phelps, Robert A. Seligson, San Francisco, for respondent.
This is an appeal by plaintiff, Eula Rogers, administratrix, of the estate of Jack E. Rogers, from the judgment entered following a verdict for defendant in an action for wrongful death brought under the Federal Employers' Liability Act. 45 U.S.C.A. § 51 et seq.
Rogers was an employee of defendant, foreman of a switching crew. On April 13, 1956, while riding on the stirrup of a moving flat car loaded with lumber, he was crushed to death between this car and another flat car located on an adjacent track.
Norman, a switchman on Rogers' crew, witnessed the accident and testified as to the following facts concerning the switching operation which resulted in the accident. One of respondent's engines at its Bayshore yards was connected with three flat cars, two containing precut lumber and one containing plasterboard. One of the lumber cars was coupled to the engine and the plasterboard car was the third or last in line. The task for the switching crew was to reverse the order of the cars and to position the plasterboard car next to the engine. To accomplish this the plasterboard car was to be 'kicked' into track 89 and the two lumber cars into track 87 (a car is 'kicked' when it is pushed by the switch engine until it reaches a desired speed and then uncoupled and permitted to roll). The plasterboard car was kicked and it stopped short of track 89 almost 'fouling' or partially blocking passage on track 87.
Rogers was standing by the track 87 switch approximately 120 feet from Norman. He called to Norman, 'Will it clear?' and Norman, after checking in the customary manner, replied, 'Yes, but it will be close.' Rogers then gave the 'kick' sign which Norman relayed to the engineer, the engine proceeded to back up and the pin was pulled uncoupling the two lumber cars. After the cars passed Rogers at the 87 switch, he threw that switch and then ran about 70 feet after the cars and jumped on the rear end of the first car. At this time the front of the first car had already successfully cleared the 'fouling' point. Rogers then stepped on the stirrup of the second car and rode about 25 to 30 feet before the accident occurred.
The two cars were traveling at a speed comparable to that of a fast walk and Norman, whose duty it was to jump on the cars and brake them if they were moving too rapidly, testified that he did not feel that they were moving too fast and that there was no necessity for riding the cars. As Rogers neared the plasterboard car he 'hugged' the side of the car and continued the ride. At this point Norman could no longer see Rogers and he never realized that Rogers would not clear the 'fouling' point, although he 'knew it would be close.' There was nothing blocking Rogers' line of sight to the plasterboard car and approximately seven seconds elapsed from the time he boarded the car and the time the accident occurred.
Rogers was in charge of the switching operation. His signal started the engine, he threw the switch sending the cars onto the 87 track, he chose to use the 'kicking' method rather than a 'shoving' procedure which would insure exact placement of the cars; and it was not his duty to jump on the moving cars.
Norman measured the clearance in the conventional railroad manner by standing next to the nearest rail of the track adjacent to the plasterboard car. He extended his arms, and his hands did not touch the plasterboard car, indicating sufficient clearance for the lumber cars to pass.
The engineer and the pin puller on Rogers' crew testified that Rogers directed the operation and made the signals and that the manner of conducting such an operation was entirely up to the foreman. The assistant general yardmaster testified that the determination of clearance as made by Norman was only for the purpose of ascertaining whether the cars would collide. It is commonly known throughout the railroad industry that such a measurement would not indicate that there would be sufficient additional clearance for a man hanging on the side of a car.
Appellant contends that the verdict was against the uncontradicted evidence and was contrary...
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