Schnee v. Southern Pac. Co., 12547.

• Decision Date: 28 February 1951
• Docket Number: No. 12547.,12547.
• Citation: 186 F.2d 745
• Parties: SCHNEE v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 745 (1951)

SCHNEE v. SOUTHERN PAC. CO.

No. 12547.

United States Court of Appeals, Ninth Circuit.

January 31, 1951.

Rehearing Denied February 28, 1951.

Leslie C. Gillen, San Francisco, Cal., Edward W. Scruggs, Tucson, Ariz. (Herbert Chamberlin, San Francisco, Cal., of counsel), for appellant.

Knapp, Boyle, Bilby & Thompson, B. G. Thompson and Arthur Henderson, all of Tucson, Ariz. (Lawrence L. Howe, San Francisco, Cal., of counsel), for appellee.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

This action is based on the Safety Appliances and Equipment Act, 45 U.S.C.A. § 1 et seq., and the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Damages are asked for personal injuries sustained by appellant, which resulted from an accident in which appellant was involved while engaged in the performance of his duties as an employee of appellee. At the conclusion of the submission of the evidence appellee moved the Court for a directed verdict, the motion was granted and, at the direction of the Court, a verdict in favor of appellee returned.

Appellant contends there was sufficient evidence to submit the case to the jury. In resolving that question "we need look only to the evidence and reasonable inferences which tend to support the case" of appellant. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 93 L.Ed. 497. Viewing the evidence in that light it is sufficient to show the following:

Appellant was employed as a signal maintainer. His job required inspection and maintenance of signals along certain portions of the right of way. Appellee supplied him with a motor car on which he traveled from place to place. On the day of the accident, August 26, 1946, appellant had occasion to travel from Willcox, Arizona, a distance of about two and one-half miles, east for the purpose of repairing a signal. He traveled at a speed of about seventeen miles per hour. On this trip he passed over the spot where the accident subsequently occurred. After examining the signal apparatus and finding that he required more tools to make the needed repairs appellant returned to Willcox over the same tracks at about the same rate of speed, picked up the required parts and then began a return trip. After traveling about two miles his motor car was derailed. Appellant was thrown onto the track and severely injured.

Witnesses described conditions at the scene of the accident as follows: Marks made by the motor car on the ties as it went along, derailed, for a considerable distance, were found. Near the place where the marks began, a wooden stake approximately eighteen inches long, an inch and a quarter square, one end of which had broken off and splintered, the other end presenting the appearance of having been hit by a heavy object, was found. Oil and grease was observed on this stake but it was unpainted. Splinters were scattered for the length of four ties from the point where the motor car left the rails. Marks and splinters were found on the underside of the motor car flooring which had the appearance of having been struck by an object which had lifted the motor car. Abrasions on a cross-tie just off the center of the track were found at a place three or four ties before the derail marks started. The abrasion on the tie was described as a hole about an inch and one-half in diameter and located about three or four inches below the top of the tie and about an inch into the tie at an angle of approximately forty degrees. The hole was filled with wood fibers which ran lengthwise into it. The tie fibers ran diagonally across the grain. A broken wedge of wood of the kind and character of the white pine stake found at the scene of the accident and hereinbefore described, was found between the floor of the car and the brake rod at a point about 7/8 inch extending up to the floor of the car. There was a clearance between the floor of the car and the top of the rails of between fifteen and sixteen inches. The wedge found under the motor car was from fourteen to sixteen inches in from its side and the hole in the tie was from fourteen to sixteen inches from the north rail of the track.

It seems quite evident from the above statement of fact that the accident was caused by a survey stake becoming lodged between a railroad tie and the under portion of the motor car. Different theories, which find support in the evidence, are advanced, but we are not called upon here to resolve the conflicts. One theory advanced by appellee is that appellant had placed on the motor car a stake which he had been using to mix a solution necessary in his repair work, and that it had fallen from the motor car and caused the accident. Appellant denied that such a stake was on the car. True, his testimony was contradictory of former statements, but his credibility would be a matter for a jury. On this appeal we are required to accept as true the denial in accordance with the rule that only the evidence and reasonable inferences which tend to support appellant's case should be considered. The theory of the stake having fallen from the motor car being out, we have a stake on a railroad bed causing an accident. It came from somewhere. Who was responsible for its being there? Agents of the railroad customarily used...