Sears v. Southern Pacific Company

• Decision Date: 26 February 1963
• Docket Number: No. 17067.,17067.
• Citation: 313 F.2d 498
• Parties: Raymond L. SEARS, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

313 F.2d 498 (1963)

Raymond L. SEARS, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee.

No. 17067.

United States Court of Appeals Ninth Circuit.

January 22, 1963.

Rehearing Denied February 26, 1963.

COPYRIGHT MATERIAL OMITTED

Hepperle & Hepperle and Robert R. Hepperle, San Francisco, Cal., and George Olshausen, San Francisco, Cal., for appellant.

Dunne, Dunne & Phelps and R. Mitchell S. Boyd, San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Plaintiff prosecuted this suit under the provisions of the Federal Employers' Liability Act 53 Stat. 1404 (1939), 45 U.S.C. ?? 51-60 (1958), to recover damages for personal injuries sustained while employed as a brakeman by the defendant, Southern Pacific Company.

The facts can be simply stated. The defendant operated a spur track on the property of Evans Products Company. At the side of the track Evans maintained a machine known as a chiploader, part of which consisted of a chute through which wood chips were conveyed into freight cars. This chute extended over the track and could be raised and lowered, but when not in use it was kept raised to avoid interfering with passing trains. There was no "telltale"¹ at this point but the frame of the machine was equipped with lights and bore a sign reading, "Impaired Clearance."

The accident occurred before dawn, while it was still dark. Plaintiff was standing on top of a freight car; the lights on the chiploader were not burning and the chute was in a lowered position. Plaintiff had previously worked in the yards and knew the chute was sometimes left down; but this time he made no attempt to discover its position and, as the train passed, he was struck and severely injured. In his complaint plaintiff charged defendant with negligence in failing to provide him with a safe place to work and requiring him to follow unsafe methods in performing his duties. Defendant's answer consisted of a denial and affirmative allegations to the effect that plaintiff was guilty of contributory negligence. Trial to a jury resulted in a verdict for plaintiff of $8,000.00; but he was dissatisfied with that amount and has appealed from the ensuing judgment. His assignments of error relate to the trial court's rulings on certain evidence and its refusal to give one of several requested instructions.

Plaintiff's Exhibit 14, for identification, consisted of the copy of a letter, which in part reads:

"Dear Sir:

"At our last meeting held at Roseburg, Sunday, January 8, 1956, the following safety suggestions were brought to my attention for handling with your office.

"1. Evans Product Spur: Water and debris along track creates a very hazardous condition. Along the rails they have cleaned the mud out and have throwed this in the path provided for the train crews to walk on. Where chips are loaded it will not clear for an employe to walk on top of cars. This condition at Evans, has been in a serious condition for two years and I have repeatedly asked Roadmaster and Trainmaster in this territory to have these unsafe altered. Would appreciate any effort that might be shown by your office. Wish also to add that crews switching have made numerous complaints to officers of both Evans Products and Southern Pacific to have better conditions on this spur to work in."

Defendant stipulated that the letter was written by a representative of the local lodge of the Brotherhood of Railroad Trainmen, and had been received by it some two years prior to plaintiff's action. However, on defendant's objection, the exhibit was rejected by the court as "merely a self-serving hearsay statement, something that happened in the past."

As proof of the condition of the property and past complaints concerning that condition, the statements were hearsay, but the exhibit was not offered to prove those facts; instead, counsel was careful to state that the purpose of the letter was simply to show that the defendant had knowledge of the alleged hazard from and after the date it received the letter. So limited, the exhibit should have been admitted.² See 6 Wigmore, Evidence, ? 1789 at 235 (3d ed. 1940).

Defendant, however, contends that any adverse effect the ruling may have had on plaintiff's case was cured by the court's instructions. Defendant points out that although its knowledge, actual or constructive, of the peril was a material fact essential to the existence of negligence. Kaminski v. Chicago River & Ind. R. R., 200 F.2d 1 (7th Cir., 1953); 38 Am.Jur. Negligence, ? 23, (1941); 65 C.J.S. Negligence, ? 5a (1950), the court completely ignored this issue and flatly told the jury that defendant had the duty to provide plaintiff with a reasonably safe place to work. Defendant's contention would have merit if this case were governed by common law rules, for under them relative negligence by either party is immaterial, and any causal negligence of the plaintiff operates to bar his recovery. But this case is prosecuted under the FELA and section 3 of that Act expressly provides that a plaintiff's contributory negligence is no bar "but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to him."

"This statutory direction * * * means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common law rule completely exonerating the carrier from liability in such a case and to substitute a new rule confining the exoneration to a proportional part of the damages corresponding to the amount of negligence attributable to the employ?." Norfolk & Western Ry. v. Earnest, 229 U.S. 114, 122, 33 S.Ct. 654, 657, 57 L.Ed. 1096 (1913).

Katila v. Baltimore & O. R.R., 104 F.2d 842 (6th Cir.1939) affords a concrete illustration of the effect of the doctrine of comparative negligence in an action prosecuted under the provisions of the FELA. From that opinion it appears plaintiff had prevailed in the trial court but nevertheless appealed, assigning as error the court's failure to instruct the jury on two of the four separate acts of negligence charged against defendant. The Court of Appeals reversed, saying that ordinarily:

"When negligence of a defendant is established compensation is based not upon the gravity of the fault or the number of faults that led to the injury, but is measured by the loss suffered, damages in the usual case being compensatory and not punitive. But once there is introduced into the law, as here, the doctrine of comparative negligence, and a jury permitted to reduce damages in proportion as the plaintiff\'s negligence bears to total negligence, then there may not be adequate assay of total negligence unless all negligence supported by evidence is given consideration." Id. at 843.

We recognize that the situation in Katila differs from the one in the case before us; there the trial court had deprived the jury of an opportunity to consider all the acts of negligence charged against the defendants, while here the court's ruling prevented the jury from considering that defendant may have had actual, as distinguished from constructive, notice of the hazard, a fact which bore on the quality of an act of negligence.

Does Section 3 of the FELA, in referring to "amount of negligence," relate only to the quantity of a party's negligence, or does it relate also to its quality?

Norfolk & Western Railway v. Earnest, supra, seems to contemplate the latter. The Court did not state that a plaintiff is entitled to receive a share of the damages based on the amount of the injury caused by the negligence of the defendant, but stated in effect that the plaintiff is entitled to a share of the damages based upon the amount of the defendant's negligence as it compares to the negligence of both parties. Id. 229 U.S. at 122, 33 S.Ct. at 657. In thus placing emphasis on comparative fault, rather than comparative contribution,³ the Supreme Court apparently regarded as important all circumstances tending to characterize the fault of the parties. The Sixth Circuit, in commenting on the Earnest case, has so held. In New York, C. & St. L. R. R. v. Niebel, 214 F. 952 (6th Cir., 1914) plaintiff's decedent was rear flagman on a freight train. He failed to comply with company rules requiring him to place a flag at the rear of a train when it was stopped, and a collision occurred. In an action to recover damages for his death, plaintiff charged the defendant with multiple acts of negligence. Contributory negligence was set up in defense.

On appeal, the defendant urged as error the admission of evidence relating to the failure of its engineer to comply with company rule C-14. That rule required the engineer to give a certain type of whistle as a reminder to the flagman to set out flags.

The court agreed that, because it was not alleged in plaintiff's complaint, the failure of the engineer to signal could not be considered as an additional act of negligence on defendant's part. However, the court said:

"It does not follow that rule C-14 and testimony of its meaning in practice are wholly inadmissible because its violation was neither declared upon as negligence nor could operate to justify wholly plaintiff\'s conduct. Under the rule of comparative negligence, the jury is entitled to consider all the circumstances which characterize the negligence of either party and which tend to fix the quantity and quality of that negligence in its relation to the sum total of the negligence of both parties. Even though the negligence of either party clearly appears, all circumstances of aggravation or of mitigation must be considered; and in view of some of the evidence found in the record regarding the

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