Southern Pac. Co. v. Thomas

• Citation: 188 P. 268,21 Ariz. 355
• Decision Date: 22 March 1920
• Docket Number: Civil 1715
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. JOHN J. THOMAS, as Administrator of the Estate of CHARLES H. THOMAS, Deceased, Appellee
• Court: Supreme Court of Arizona

188 P. 268

21 Ariz. 355

SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. JOHN J. THOMAS, as Administrator of the Estate of CHARLES H. THOMAS, Deceased, Appellee

Civil No. 1715

Supreme Court of Arizona

March 22, 1920

APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Affirmed.

STATEMENT OF FACTS.

Action by the administrator of the estate of Charles H. Thomas deceased, to enforce the liability of the carrier, given the estate of decedent under the federal employers' liability law (U.S. Comp. Stats., §§ 8657-8665; 8 Fed. Stats Ann., 2d ed., pp. 1208-1378) for the use and benefit of the father. The deceased was an employee of the Southern Pacific Company, occupied as a head brakeman on a train engaged in moving interstate commerce. About dark, on the twelfth day of December, 1916, the deceased was crushed between the couplers of a loaded flat car and a box-car. He placed himself between the cars at the break in the train two cars back of the engine, and the engine backed, catching and crushing the deceased.

The trainmen found deceased after the injury, and while on the ground, waiting to be placed aboard the train, deceased stated that he (deceased) turned off the angle-cock, closing the train air line. When asked, "How did it happen?" referring to the accident, "he said he saw those drawbars come by, come apart, and he went to go through, and he thought that I [engineer] wanted to slack off ahead, was his understanding. He said: 'it was a mistake. I thought you wanted to slack off ahead.' And he said "I was too slow going by, and when you went to come back, why, it got me going through there.'"

On cross-examination, the engineer added that the deceased stated to the fireman "that he was too slow going through there when he saw those knuckles separate, those couplings separate, and he said 'I thought they wanted to cut in two to pull ahead.'"

The injured man died on December 13, 1916, before he reached the hospital at Tucson.

The record contains much testimony of trainmen, experts in handling train equipment, compressed air and automatic couplers and other appliances used and required by law to be used in train service and on trains of the kind here operated and engaged in interstate commerce.

The controverted facts on the trial raised the inquiry as to how the train became separated, whether from defective or insufficient couplers, or whether the cars were uncoupled by someone, perhaps the deceased.

The court submitted the following special interrogations to the jury, to which answers were returned by the jury, as indicated:

"Were the couplers on either of the cars mentioned in the plaintiff's complaint defective, as alleged by the plaintiff? Ans. Yes.

"Int. Did the train break in two? Ans. Yes.

"Int. Did plaintiff's decedent, Chas. H. Thomas, uncouple the cars himself? Ans. No."

The jury also found a general verdict for the plaintiff. The court suggested a reduction of the amount of the verdict returned, to which the plaintiff acceded, and remitted a portion of the verdict returned. Whereupon judgment was rendered and entered for the plaintiff. The defendant appeals.

Mr Francis M. Hartman, for Appellant.

Messrs. Richey & Richey, for Appellee.

OPINION

CUNNINGHAM, C. J. (After Stating the Facts as Above.)

The appellant contends that the evidence, undisputed and uncontroverted, "showed conclusively and overwhelmingly that the two couplers were not defective." If the appellant's contention is sound, then the special verdicts, in the form of answers to the three interrogations submitted to and answered by the jury, are not sustained by the evidence, and the general verdict is wrong. The defendant is not liable unless it has failed to use due care for the employee's safety, in the particular of providing couplers on its cars free from defects.

The Supreme Court of the United States considered the scope and effect of the Safety Appliance Act of Congress (U. S. Comp. Stats., §§ 8605-8612; 27 Fed. Stats. Ann., 2d ed., pp. 531, 532), and it directly and expressly decided that the provision in the second section, relating to automatic couplers, imposed an absolute duty on each carrier corporation in every case to provide the required couplers on cars used in interstate traffic. St. Louis, I.M.& S.R.CO. v. Taylor, 210 U.S. 281, 52 L.Ed. 1061, 28 S.Ct. 616 (see also, Rose's U.S. Notes). The decision in the Taylor case is so construed in the Chicago, B. & Q. R. R. v. United States, 220 U.S. 559, 575, 55 L.Ed. 582-588, 31 S.Ct. 612, 616. The court continues:

"It also decided that nonperformance of that duty could not be evaded or excused by proof that the corporation had used ordinary care in the selection of proper couplers or reasonable diligence in using them and ascertaining their condition from time to time. That the Taylor case, as decided by this court, has been so interpreted and acted upon by the federal courts generally is entirely clear, as appears from the cases cited in the margin." See marginal notations, 55 L.Ed. 588.

We cannot escape the conclusion that the couplers on the box-car and the gondola-car, between which the deceased was crushed, were defective, if they failed to hold the cars together, and became uncoupled while the train was moving, from any cause other than from human agency. The deceased stated to the first man who reached him after the accident that the cars had become uncoupled. He is the only person who was in the position to know that fact, so far as the record discloses. He states that the cars had become detached, uncoupled and he had gone between the cars to close the air valves before the air line should separate. While he was engaged in so doing, the engine was run backward, and he was caught and crushed. This evidence was admitted as a part of the res gestae, and is sufficient to justify the jury in finding as facts the answers to the three interrogatories, viz., that the couplers were defective; that the train broke in two; that decedent did not uncouple the cars.

The testimony of the expert trainmen as to the experiments they tried and their opinions after experimenting with and examining the couplers after the accident is evidence justifying a conclusion of a contrary nature. However, as the jury believed the statement made by the deceased as the fact, and disbelieved the expert witnesses' opinion as to how the train became uncoupled, we shall enforce the rule of noninterference with the verdict merely because the evidence is conflicting.

The finding of the jury, based on the evidence referred to, supra, showed that the couplers were in such defective condition that they failed to perform their function of holding the coupling. The couplers failed to perform the work for which they were intended. "A 'failure of a coupler to work at any time sustains a charge of negligence.'" Noel v. Quincy, o.& K.C.R.CO. (Mo. App.), 182 S.W. 787, citing Chicago, R.I. & Pac. Ry. Co. v. Brown, 229 U.S. 317, 57 L.Ed. 1204, 33 S.Ct. 840; Chicago, B. & Q. Ry. Co. v. United States, 220 U.S. 559, 55 L.Ed. 582, 31 S.Ct. 612; St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 52 L.Ed. 1061, 28 S.Ct. 616 (see also, Rose's U.S. Notes). It is an absolute duty of the carrier to keep the couplers in an operative condition. United States v. Atchison, T. & S.F. Ry., 163 F. 517, 90 C.C.A. 327; St. Louis, I.M. & S. Ry. v. Taylor, supra; Chicago, B.& Q. Ry. Co. v. United States, supra; Noel v. Quincy O.& K.C.R. Co., supra. In the last case the court said:

"The rule, as stated in these three decisions, like our statement above, is that the absolute duty of the railroad does not end with the mere installation of the appliance."

The operative condition of the couplers involved in this case was not maintained, so that they would remain coupled during the haul of the train, and hence the Safety Appliance Act was violated.

The appellant's contention that there is no evidence tending to prove negligence on the part of defendant is therefore untrue, as a violation of the safety appliance statutes in moving interstate commerce is negligence per se under the authorities and under the employers' liability law (Act Cong. April 22, 1908) and amendments, as such act has been repeatedly construed. Winkler v. Philadelphia etc. R. Co., 4 Penne. (Del.) 80, 53 A. 90, affirmed 4 Penne. (Del.) 387, 56 A. 112; Voelker v. Chicago, M. & St. P.R.R. Co. (C.C.), 116 F. 867; Southern R.R. Co. v. Carson, 194 U.S. 136, 48 L.Ed. 907, 24 S.Ct. 609; Montgomery v. Carolina & N.W.R. Co., 163 N.C. 597, 80 S.E. 83.

The appellant further contends that --

There is "no evidence tending to prove that defendant was liable under the terms of the act of Congress known as the federal Employers' Act."

"(b) That the evidence showed that plaintiff's intestate had assumed the risk of the injuries.

"(c) That under the evidence the cause of the accident to the plaintiff's intestate was a matter of conjecture."

It is clear that if the appellant failed to have the two cars in use, between which the decedent was caught and killed properly equipped with sufficient couplers while moving them in interstate commerce, it was guilty of negligence, and as a matter of law the deceased did not assume the risk (section 8660, Comp. Stats. U.S.; 8 Fed. Stats. Ann., 2d ed., p. 1352) of the injuries suffered by him, because the servant never assumes the risk of the master's negligence. If such failure of the carrier to so equip such cars contributed to the injury or death of such employee, the assumption of risk of the servant is abolished. Section 8660, Comp. Stats.; 8 Fed. Stats. Ann., 2d ed., p. 1352, supra; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, Ann. Cas. 1915B, 475,...