Southern Pac. Co. v. Huyck

• Decision Date: 02 September 1942
• Docket Number: 3351.
• Citation: 128 P.2d 849,61 Nev. 365
• Parties: SOUTHERN PAC. CO. v. HUYCK.
• Court: Nevada Supreme Court

128 P.2d 849

61 Nev. 365

SOUTHERN PAC. CO. v. HUYCK.

No. 3351.

Supreme Court of Nevada

September 2, 1942

Rehearing Denied Oct. 19, 1942.

Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.

Action by Gladys E. Huyck, as administratrix of the estate of C. B Huyck, deceased, against the Southern Pacific Company under the Federal Employers' Liability Act to recover damages for his death, alleged to have been caused by the negligence of defendant. Verdict for plaintiff. Defendant appeals from the judgment and from the order denying its motion for a new trial.

Affirmed.

Brown & Belford, of Reno, for appellant.

James A. Myers, of Oakland, Cal., and Frank W. Ingram, of Reno (Clifton Hildebrand, of Oakland, Cal., and Goodman & Brownstone, of San Francisco, Cal., of counsel), for respondent.

DUCKER Chief Justice.

Plaintiff as administratrix of the estate of her deceased husband, C B. Huyck, instituted this action pursuant to the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, to recover damages for his death alleged to have been caused by the negligence of defendant. The jury returned a verdict in favor of plaintiff. Defendant has appealed from the judgment entered therein and from the order denying its motion for a new trial.

The second amended complaint includes the following allegations "That at said time and place (April 8, 1937, Hazen, Nevada,) the defendant carelessly and negligently maintained its said track and road bed in that large timbers were laid parallel to the rails of said track and approximately two feet outside of said rails, which said timbers and rails formed ditches on both sides of said track and thereby created a trap whereby any one falling from said locomotive would be caught and crushed between said locomotive and said timbers; that the maintenance of said timbers in such position was contrary to the custom and practice of railroads in the premises, and created an unsafe place wherein to work; that at said time and place deceased fell from the gangway ladder into the ditch on the southerly side of said track and, by reason of the carelessness and negligence of defendant in the premises the said deceased was caught and crushed between said engine or tender thereof and the said timbers and was rolled in said ditch and did thereby receive injuries causing his death."

The answer denied the allegations of negligence and plead assumption of risks. Huyck, at the time of his death, was 55 years of age. He was six feet and one inch in height and weighed 215 pounds. He was an experienced trainman, having been continuously in the employ of the defendant on the Salt Lake Division as a freight brakeman and conductor, from July, 1910, to the time of his death. He was promoted to the position of conductor in 1916. On April 8, 1937, he was conductor of a freight train operated by defendant in interstate commerce, and designated as "Extra 3748 West." The train running westerly reached Hazen, Nevada, at about 4:40 A.M. of that day. In order to conduct switching movements the locomotive, tender and water car, were cut off from the front of the train on the main line. After finishing this work the locomotive and attached tender and car were proceeding westerly on the defendant's track designated as the N & C main line along the station platform at Hazen preparatory to picking up the train. This track, the southerly track of three in front of the Hazen station, was the nearest track to the station and located about twenty-five feet therefrom. As the locomotive approached the Hazen station platform it was slowed down to allow a brakeman to get off and line up a switch. The easterly end of the platform was approximately opposite to this switch. The platform was constructed of hard-packed gravel and terminated in a wooden curbing paralleling the rails. The distance from the outer edge of the curbing to the rails was approximately two feet. The platform and curbing were approximately the height of the rails and the space between the rails and curbing was approximately five inches deep. The bottom was about level with the ties. This type of platform is known as the curb type. Something over one hundred feet westerly from the easterly end of the platform was a crossing platform constructed of wood extending on a level from the curb across the N & C track for the passage of trucks with freight, baggage or express. As the engine passed the switch, engineer Jackson, fireman Steiner, brakeman Baker and Huyck were in the cab, brakeman Kelly having swung off to align the switch. The engine was running six to eight miles per hour according to Baker; approximately three to four miles per hour according to Steiner; about five or six miles according to Jackson. As the engine passed the switch Huyck was preparing to alight from the engine at the station by going down the gangway ladder on the left or fireman's side of the engine. On both sides of the engine were what are termed grab irons for hand holds. He came out of the gangway onto the ladder backwards in the usual and customary manner, holding to both grab irons. Before he reached the bottom tread of the ladder his left foot went to the left of the ladder in the direction of the movement which caused him to lose his grip with the right hand, and his body swung in so that his back was to the west in the direction in which the engine was moving, and forward of the ladder. In this position he took two or three quick steps striving to regain his balance, lost his hold with his left hand and fell. He fell at a point approximately opposite the east end of the station building and was dragged to said crossing platform. He was picked up in a semi-unconscious condition and died later in the day. He was not seen from the time he fell until he was picked up.

The only question presented for determination is whether the evidence is sufficient to support the verdict. Under the Federal Employers' Liability Act, which governs this case, there is no liability in the absence of negligence on the part of the carrier. Missouri Pac. R. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351. To support the verdict there must be substantial evidence produced to show that the negligence alleged in the second amended complaint on the part of the carrier was the proximate cause of Huyck's death. Defendant contends there is no such evidence to show either that the platform at Hazen was negligently constructed and maintained or that it caused the conductor's death. There was no eye witness as to the manner in which Huyck was caught by the engine or tender, or what happened after that till the body was thrown clear at the crossing platform. Necessarily, therefore, proof of these facts must have been based on circumstantial evidence. Such proof may be resorted to to furnish the substantial evidence necessary to support a verdict or judgment obtained pursuant to the federal act. Showalter v. Western Pac. R. Co., 16 Cal.2d 460, 106 P.2d 895, and federal cases cited therein.

Huyck was last seen by Steiner, the fireman, and Baker, the head brakeman, before the accident when he lost his hold on the grab iron with his left hand and fell. Concerning his descending the ladder and falling, Steiner testified:

"Q. Then after brakeman Kelly had swung off at that point, what, if anything, did Mr. Huyck do? A. He walked over on the left side of the gangway of the engine in back of my cab. Of course I couldn't see when he got in back of my cab.

Q. Is it of metal so you can't see through it? A. I noticed the back of his legs coming down the gangway.

Q. The gangway ladder? A. The gangway ladder, yes.

Q. You could see his legs from your position? A. I could see his legs coming down the ladder.

Q. When you saw him coming down the ladder, and saw his legs, just before this accident happened, what was the position of his left leg with reference to the ladder ***? A. Well, he wasn't on the bottom rung of the ladder, He never came down to the bottom rung of the ladder. Of course, he hesitated--he got down to the fourth rung of the ladder, that is, the second from the bottom; he hesitated there. To demonstrate, he was facing this way--I will say that would be the north side--and his left leg here, he put his left leg out on the outside of the ladder. He was standing apparently--I was looking down at him from the cab. Apparently his right foot was in the center of the rung of the ladder.

Q. You are indicating now the second rung of that ladder, the second from the bottom? A. Yes, his left foot came right out on the outside of the ladder in the direction of the movement.

Q. That would be west? A. That would be west, yes.

Q. Off the left-hand side of the ladder? A. Yes.

Q. Now, with reference to his right hand, did you notice where it was at that time? A. No, I didn't because I was looking at him from an angle, and his shoulders and his hat was in the road. I couldn't see the position of his right hand at that particular time.

Q. Did you notice the position of his left hand? A. Yes.

Q. Where was it at that time? A. It was on this--we might call it the front grab iron.

Q. In other words, the grab iron to the front of the ladder?--the gangway ladder, or facing the fireman's side, it would be the hand hold to the left of the ladder? A. That is right ***.

Q. In other words, you were looking out from this window? A. Yes.

Q. And then what happened, Mr. Steiner? A. Well, as--let me see--as I said, his left foot was on the outside of the ladder, and at apparently the same time he released his right hand from this grab iron. Now, I imagine he did, because I could see his shoulders swing *** in towards the ladder.

Q. The ladder was about in line with the middle line of his body as he swung in

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