Shepard v. Payne

• Decision Date: 02 May 1922
• Docket Number: 3657
• Citation: 60 Utah 140,206 P. 1098
• Court: Utah Supreme Court
• Parties: SHEPARD v. PAYNE, Agent

206 P. 1098

60 Utah 140

SHEPARD v. PAYNE, Agent

No. 3657

Supreme Court of Utah

May 2, 1922

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by Charles Shepard against John Barton Payne, as Agent under the Transportation Act of 1920, § 206 (41 Stat. 461). Judgment for the plaintiff, and the defendant appeals.

AFFIRMED on condition of filing a remittitur, otherwise a new trial will be granted to defendant unconditionally.

George H. Smith, John V. Lyle, and R. B. Porter, all of Salt Lake City, for appellant.

Marioneaux & Beck and Willard Hanson, all of Salt Lake City, for respondent.

WEBER J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ concur.

OPINION

WEBER, J.

Plaintiff was a section foreman in defendant's employ. While riding on a hand car with his men on April 12, 1919, the car, then being operated at a speed of three or four miles per hour on reaching a slight curve suddenly left the track. The plaintiff alleges that the defendant negligently furnished him with a hand car equipped with a gauge too wide to properly fit on the track; that the flange of the wheels rode upon the rails rather than the ball of the wheels and that the car left the track on the date mentioned by reason of the improper gauge; that plaintiff, at the time of the derailment, was thrown off the car and injured. Defendant denied negligence, and affirmatively pleaded assumption of risk and contributory negligence. The jury returned a verdict in favor of plaintiff for $ 10,000, the amount demanded on the complaint. From the judgment accordingly entered defendant prosecutes this appeal.

So far as they need to be stated at this time, the facts are Plaintiff was a section foreman, and had supervision over and maintenance of eight miles of main line track of the Oregon Short Line Railroad between Downey and Arimo stations in Idaho. On the date of the accident plaintiff, with a crew of seven men, left Virginia City, Idaho, where there is a tool and section house, to do their usual work of repairing the track. Returning from work that afternoon the car was derailed, and plaintiff sustained injuries. The car had been furnished plaintiff about two weeks before. It was an ordinary car propelled by hand, and had just come from the shops and was supposed to be in good repair and good order. There was no obstruction on the track to cause the derailment. It was after the accident that the cause of the derailment was discovered by some of the section men who, upon close inspection of the car, ascertained that the wheels were riding upon the flange instead of the ball. Returning from the hospital about two weeks after the accident, plaintiff was informed of the defective condition of the wheels of the car, and he then made an examination and discovered that the car was riding on the flange, instead of the ball of the wheels riding upon the rails.

When a car is received from the shops it is supposed to be properly gauged, with the wheels securely set. No tools are furnished section men for changing the gauge of wheels. To fit the wheels properly it is necessary that it be done by machine men with lathes. It was not the practice of section foremen anywhere to examine hand cars in order to ascertain whether they had been properly gauged. Plaintiff had been a section man for 30 years, had worked for various roads, and had never himself gauged the wheels of a hand car, nor had he known of other section men doing it.

Appellant's first assignment of error is that the court erred in permitting the plaintiff and one of his witnesses to testify regarding the manner of gauging the wheels. Plaintiff was permitted to testify without objection that he could not gauge wheels and had no tools for that purpose. Thereafter similar questions were propounded to plaintiff and another witness, and to these questions objections were made by defendant. One of the questions answered over defendant's objection was whether section foremen or section men are ordinarily furnished tools with which to turn or a lathe to turn the axle or set the wheels back in case they are not properly gauged. It is argued that these questions and answers could not affect the duty owing to plaintiff by defendant, and that, if the hand car was defective, plaintiff could have sent it back, and it made no difference whether or not he could repair it. Conceding that this evidence was not material, it was of so little importance that it could not possibly constitute prejudicial or reversible error. When the question calling for the evidence was first asked plaintiff, counsel for defendant considered it of no importance and evidently for that reason, did not interpose an objection. It cannot now, because of unnecessary repetition, be magnified into reversible error.

It is also argued that the court erred in permitting plaintiff to testify relative to the nature and extent of his inspection of hand cars and the practice of foremen in inspecting them. The evidence was to the effect that these hand cars usually run hard for a month or so because of tightness of the bearings, and that it had always been customary to furnish hand cars properly gauged to the track, and that section men were never known to gauge a hand car or examine it as to gauge. All this testimony was introduced after the rules of defendant had been introduced and after plaintiff had been examined by defendant on cross-examination regarding them. These rules read:

"No. 732. Every person accepting employment does so with full knowledge of dangers incident to the operation of the railroad, and agrees to exercise due care in the performance of his duty to prevent accident to himself and others, and before using them, to see that any machinery or tools are all in a safe condition to perform the service required."

"No. 772. Hand cars must be examined at least once a week for loose bolts and other defects. The same must be kept in good order, bearings and machinery must be well greased, and not to do such involves risking an accident."

Defendant contends that, by virtue of these rules, it was plaintiff's duty to inspect the wheels of the car that had been furnished him, for the purpose of ascertaining whether the wheels were properly gauged. Under the rules plaintiff is required to inspect the car once each week for loose bolts and other defects. Plaintiff testified that he complied with the rule as he understood it. The gauge of the wheels is a permanent condition, not something to be inspected at least once each week, and the foreman had a right to rely upon the presumption that the car was in good condition, that it had been properly finished, and was fit for use when it was delivered to him. The rule did not require him to make a minute inspection of the car, and an inspection of the wheels for the purpose of passing judgment on whether it had been properly constructed, and was safe for the intended purpose. If this construction of the rule is proper, the evidence which defendant calls immaterial supported the rule, and hence could not be prejudicial. If, however, the rule is ambiguous, and there is any uncertainty regarding what is meant by the sentence that foremen shall inspect the car once a week for loose bolts and other defects, the testimony objected to was clearly admissible as bearing upon the question as to whether the rule was intended to require an inspection and examination of all parts of the car when it was first received.

It is next contended by appellant that the evidence disclosed no actionable negligence on the part of defendant. It certainly was its duty to use ordinary care to furnish plaintiff a hand car that was reasonably safe. Plaintiff's evidence, if believed by the jury, justified the finding of actionable negligence.

It is urgently insisted that the evidence tending to prove assumption of risk was so clear that the court should have granted defendant's motion for a nonsuit. It is again argued that it was the duty of plaintiff to make an inspection of the car when he received it, and that he was chargeable with the knowledge that a performance of his duty would have disclosed, and that it was his duty to see that his hand car was safe and fit for use when he received it. As we have heretofore said, the plaintiff had a right to assume that the car had been properly constructed, and there was no duty devolving upon him, under the rules or otherwise, to make an inspection for latent and unobservable defects. It was not his duty to measure the wheels or make any other examinations save the one for loose bolts and other like defects that would occur during the operation of the car. If, however, the defect or imperfect gauge of the wheels was open and obvious, so that he should have known about it, it was a risk assumed by the plaintiff. But evidence furnished by plaintiff tended to prove that the improper gauging was not open and obvious and not readily observable. One of the section men testified that immediately after the accident he made an examination of the car for the purpose of ascertaining what caused the derailment. He said he got under the car and looked up under the wheels, and then, and not until then, could he see that "it was not fitted down on the ball like it should be on the rail." This witness further testified that he had been on the car every time that it was in use; that there was nothing about the wheels that indicated what was the matter with it; that it ran as all new cars do; that in order to notice the defective gauge one had to make a close inspection. Plaintiff testified that the car was the same as any new car, and seemed to be all right as far as a person could see; that he had made an examination for loose bolts and loose...