San Pedro, L.A. & S.L.R. Co. v. Brown

• Decision Date: 19 May 1919
• Docket Number: 3172.
• Parties: SAN PEDRO, L.A. & S.L.R. CO. v. BROWN.
• Court: U.S. Court of Appeals — Ninth Circuit

258 F. 806

SAN PEDRO, L.A. & S.L.R. CO. v. BROWN.

No. 3172.

United States Court of Appeals, Ninth Circuit.

May 19, 1919

The San Pedro, Los Angeles & Salt Lake Railroad Company brought writ of error to review a judgment of the District Court in favor of Brown, defendant in error, upon a verdict for damages for personal injuries. The railroad company denied negligence and pleaded contributory negligence. The action was brought under the federal Employers' Liability Act April 22, 1908 (35 Stat. 65, c. 149 (Comp. St. Secs. 8657-8665)), which provides, in substance, that every common carrier by railroad, while engaged in interstate commerce, is liable in damages to any person suffering injury while he is employed by such carrier in such commerce, whether such injury results in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, and the fact that an employe may have been guilty of contributory negligence merely mitigates the damages and does not bar a recovery.

The evidence as produced by plaintiff below was as follows: Brown was an experienced car inspector employed by the railroad company at Otis, now Yermo, Cal. The inspectors worked in pairs; Brown's 'partner' being one Ables, also an experienced inspector. On November 17, 1914, in daylight they were about to inspect a train of 15 or more cars which was standing upon a main track west of the depot. The inspectors went toward the head of the engine, and separated near the head of the engine, Ables going on the south or engineer's side, and Brown on the north or fireman's side, of the engine. Ables had the blue flag in his hand. When the men separated, they were about 50 feet from the front of the engine, and Ables said, 'I will put the flag there, and we will hold them there until we are through ' Brown testified that it was not customary to put the flag right in the cab of the engine, but to place it on the running board, where the engineer could see it; that when he went around the engine on the north side he could not see the engineer or the fireman; that he passed two cars, and observed that on the third car, a 'Salt Lake box car,' the air was set, but the piston travel was too short; that he went to the west end of the car to adjust the brake, and crawled under the west end of the car behind the rear trucks, was facing forward, on the fireman's side and pulled the release rod to release the brakes. The lever had a track spike in it, instead of a key bolt, and moved with difficulty, so he took his hammer from his pocket to strike, and was in the act of crawling up closer when he noticed the wheels starting. He made a 'lunge,' seized a grabiron under the rear of the car, and managed to get out by the time the train came to a stop, but was injured. Brown said that he relied upon his partner to put the blue flag on the engine; that the custom was for one inspector to go on one side and one on the other, although they were supposed generally to go together.

There was evidence as to the custom of the railroad company with respect to inspection of air and of cars, and that when a train was brought into the yard the car inspectors place a blue flag on the end, and one inspector would go down each side of the train and inspect for brake shoes and brake 'riggins.' There was no evidence of a practice of putting a flag signal at each end of the train.

The testimony of Brown and Ables varies in some respects particularly as to the conversation they had just before they separated; but Ables admitted that he was going toward the engine and had the flag in his hand. There was evidence that it was neither customary nor necessary that each inspector should personally see the flag on the engine before going beneath the car.

Certain rules of the company were introduced in evidence. One, No. 517, under the heading 'Car Inspectors,' reads: 'When making repairs under cars standing on main track or side track, they must protect themselves by placing a blue signal on the drawhead or the platform or step of the car at each end of the train to prevent the cars from being coupled to or moved while they are making repairs. ' Rule 26, under which Brown said they were working, provides: 'A blue flag by day and a blue light by night displayed at one or both ends of an engine, car, or train, indicates that workmen are under or about it. When thus protected, it must not be coupled to or moved. Workmen will display the signal, and the same workmen alone are authorized to move them. Other cars must not be placed on the same tracks, so as to intercept the signal, without first notifying the workmen. ' Another rule, No. 842, provides, in substance, that if the brakes on the last car are properly set, inspectors or trainmen will signal to release the brakes, and the inspector will examine each car and see that the brake releases, and if any brakes will not release, or have leaks or broken rods, they must be cut out by closing the stop cock in branch pipe.

Fred E. Petit, Jr., A. S. Halsted, E. E. Bennett, and Dana T. Smith, all of Los Angeles, Cal., for plaintiff in error.

T. W. Duckworth, of San Bernardino, Cal., and J. H. Ryckman, of Los Angeles, Cal., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Judge (after stating the facts as above).

It is evident that the inspection was being made for defective brake equipment rather than an air test, and, considering the evidence of the practice followed by the inspectors at Yermo, we cannot say that, as a matter of law, it was incumbent upon the inspector who was working under the train to make sure that the other inspector actually placed the signal.

Certainly it is the right of an employer carrier to issue rules for the safety, guidance, and...