Southern Pac. Co. v. Guthrie, 12164.

Citation180 F.2d 295
Decision Date15 February 1950
Docket NumberNo. 12164.,12164.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Arthur B. Dunne, Dunne & Dunne, San Francisco, Cal., for appellant.

Thomas C. Ryan, Daniel V. Ryan, Ryan & Ryan, San Francisco, Cal., for appellee.

Before BONE and POPE, Circuit Judges, and BLACK, District Judge.

POPE, Circuit Judge.

Southern Pacific Company has appealed from a judgment recovered against it by Garry T. Guthrie in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The contentions most strenuously urged by appellant are (1) that there was no evidence of negligence on its part, and (2) that the damages recovered are excessive. The company also specifies as error the refusal of the court to give numerous requested instructions, and the admission of evidence to which we shall call attention hereafter.

Guthrie was a locomotive engineer employed by the Southern Pacific Company. He had completed a run from Yuma to Gila Bend, Arizona, on the morning of October 27, 1947. Later the same day he received orders to "deadhead" to Yuma, to the west. This meant he could travel by freight, or passenger train, or both. Pursuant to these orders he took a freight train to Sentinel, Arizona, which was part way, and at that point decided to change to a passenger train, which was due to arrive shortly, in order to shorten the time required for his trip. Accordingly he waited at Sentinel for the arrival of passenger train No. 5, westbound for Los Angeles. The train reached the Sentinel yards about 9:30 P.M. and was obliged to pass through the yards on the north side passing track or siding on account of a broken rail on the main line track. This necessitated the train coming back on the main line at a switch on the west end of the siding.

The switch stand, by which this switch was operated, was north of the main line. On the other side was the station platform, where Guthrie had been waiting. When the train moved slowly through the passing track, he set his grip down on the platform and crossed over the track to the switch stand in order to throw or line the switch so that the train could come out on the main line. It was customary for engineers and other trainmen, when traveling as he was, to furnish such assistance to the train crew, and there is no question but that Guthrie was then in the course of his employment and then engaged in interstate commerce.

As he moved over to the switch stand Guthrie was standing in the full beam of the locomotive's headlight. The train was moving very slowly. The fireman had climbed down on the right hand, or engineer's side of the engine, intending to throw the switch himself, and had gone ahead for that purpose, but when he saw Guthrie, dressed as an engineer, unlock and line the switch, and give the customary signal to proceed, he waited for the engine to come along and then climbed back on the engine.

After Guthrie had thus signaled to come ahead, he started to cross the track to the south, back toward where he had left his grip. When he took the first step, with his right foot, between the rails, his foot or shoe caught in the space between the tie bar and head block or switch tie, and he could not pull it out. He shouted, but could not be heard above the engine noise and he could not be seen from either window of the locomotive cab because of the width of the engine. As the locomotive continued toward him he threw himself backward over the rail, so that he saved his left leg and body, but his right leg was run over and cut off at a point between the knee and the hip.

The appellant urges that there is no evidence of negligence on the part of the company. Under the court's charge there were submitted to the jury two claims of negligence, one that there was negligence "in connection with the maintenance of the area in and about and connected with the switch", and one that there was negligence "on the part of the fellow employees in the operation of the railroad engine". Appellant says that there was negligence in neither respect, and further, that if either of these claims must fall for want of evidence, the judgment must be reversed for the reasons stated in Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 27 S.Ct. 412, 51 L.Ed. 708, because, under the general verdict, it cannot be known upon what ground the jury went.

Guthrie gave several reasons why he crossed the track after lining the switch. He had left his grip on the side opposite the switch stand and he had to go to that side to board the train which opened up for passengers on that side. Two company rules were mentioned. One provided: "While the train is moving over a switch any employee in the vicinity of such switch must take position on the opposite side of the track from switch when practicable, and when not practicable to do so must take position 20 feet from switch stand". The other rule was cited by Guthrie as his reason for crossing at that particular place. He said he did so in order to inspect the points of the switch. The switch points are the moveable portions of the rails, tapered at the ends, which are moved back and forth as the switch is operated. This rule provided that: "When a switch is thrown, the employee setting it must see that both points have moved to the proper position".

When Guthrie stepped between the rails his right foot was caught between the tie which is referred to as the switch tie, or head block, and the No. 1 tie rod. The switch tie is the tie which is extended beyond the other ties to furnish support for the switch stand. The tie rod connects the two switch points, so that when the switch is thrown, both rails move together. Fastened to the inside of the switch points on either side are metal transit clips, in which five bolt holes are set on an angle, and as the connecting tie rod is fastened by bolts in these holes, the correct distance between the two switch points can be maintained by moving the bolts from hole to hole. At the time of the accident the tie rod was bolted to the middle hole of the north clip and the second hole from the east on the south clip. Partly in consequence of this, the space between the switch tie and the tie rod tapered from a two inch space on the north to a four inch space on the south. Guthrie stepped into this space between switch tie and tie rod. He said that as he did so his foot went into a hole. The track was ballasted with slag, but Guthrie testified that at the point where he stepped, the ballast, instead of being in place up to within four inches of the top of the ties, was down to a depth of 7, 8 or 9 inches, sloping down toward the north, so that as he stepped his foot slipped back under the narrower portion of the space between switch tie and tie rod, and his foot became wedged in this space. He was thrown, and fell on his left side. He got up, but could not pull his foot out. He thought his leg was broken. Another witness who later picked up the severed leg thought it was broken at the ankle.

Other witnesses who examined the location a few days after the accident and while conditions at the switch remained the same, testified as to the depth of the ballast beneath the tie rod where Guthrie caught his foot. One of them said that he measured a distance of nine inches from the bottom of the tie rod to the top of the ballast at the north side of the track and that the measurement was seven inches below the tie rod at the other side of the track. Another witness testified that about the same time he examined the location and found that the top of the ballast between the two ties and inside of the two rails was nine inches below the top of the ties. According to his testimony the ballast at this point was actually slightly lower than the bottom of the ties. He described it as "saucer shaped" and said that the appearance was as if some of the ballast had been taken out.

Not only did the company produce evidence of measurements made tending to controvert Guthrie's claim that he stepped into a hole, but it attacks the claim of the existence of a hole at this point as not entitled to any credit whatever for two reasons. It says that if the ballast were actually below the bottom of the two ties, the movement and weight of the trains operating there would have moved the two ties together for want of ballast between them. It is asserted that the photographs of the locality taken shortly after the incident showed that the ballast was in a normal position and that there was no hole in which Guthrie could have stepped. With respect to the claim that the ties would have shifted, plaintiff's counsel argue that there is no claim that there was no ballast between the ties and that there is nothing to show that the ballast between the ends of the ties outside of the rails would not have been sufficient to hold the ties in place. An examination of the original photographs which are part of the record in this court does not furnish any satisfactory answer to the controversy. Obviously, the taking of a photograph of space between ties in such manner as to show depth, is an exceedingly difficult undertaking in the absence of some stereoscopic device. Exhibits 7, L and J, which are photographs, seem to indicate some extra depth in ballast at this point, while in exhibits I, K, H, and F, also photographs, taken at the same time, the depth seems less.

The evidence does show that in ordinary railroading practice it is standard procedure to have the ballast beneath this moving portion of a switch slightly lower than the ballast elsewhere along the track. Some allowance must be made for the movement of the tie rods. It was testified on behalf of the defendant that the top of the ballast was 4½ inches lower than the top of the ties.

Viewing the evidence in the light most favorable to Guthrie, we believe that the jury would be warranted in believing...

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