Southern Pacific Co. v. Gastelum
| Decision Date | 16 December 1929 |
| Docket Number | Civil 2802 |
| Parties | SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. DIEGO GASTELUM, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. Gerald Jones, Judge. Judgment granting a new trial modified and as modified affirmed.
Mr Francis M. Hartman, for Appellant.
Mr Harry O. Juliani and Mr. E. T. Cusic for Appellee.
In this action Diego Gastelum seeks to recover from the Southern Pacific Company, under the Federal Employers' Liability Law (45 U.S.C.A., §§ 51-59), damages suffered by him as a result of an injury received while discharging his duty as an employee of that company. He won a verdict for $1,500 and was awarded judgment in that sum, but feeling this inadequate moved for a new trial of the amount of damages alone. The defendant likewise moved for a new trial and for judgment notwithstanding the verdict, but the court denied both of its motions and at the same time announced that plaintiff's would be denied also if within ten days both parties would file their written consent that the judgment be increased to $6,500 and that it would be granted if such consent were not filed. This was evidently not agreed to, because a new trial on the question of damages alone was ordered.
The facts out of which the action grew, as disclosed by the complaint and the evidence, are substantially as follows: The plaintiff and twelve other men were camped at Sentinel Arizona, near which they were working on a bridge. Each night and often at noon for lunch they returned to the station on a track motor-car and a push-car with which the company supplied them for this purpose as well as for hauling materials. Some 200 feet west of the depot at that point the defendant kept a movable platform about four and one-half feet wide by six feet long and made of pine lumber (one-inch boards nailed to two by four's), and it was used in this way: It was placed on the ground between the rails, and the motor-car rested on it in being taken off and put upon the track. On September 2d, 1926, as the men were starting to work after lunch and the motor-car and the push-car had been placed on the track preparatory to returning, the foreman directed that some of the men, without designating which ones, remove the platform from between the rails to a place alongside the track out of the way of passing trains, and after giving this command he and most of the gang proceeded toward the depot taking the cars to be loaded with cement. The plaintiff, Jose Dominguez, and, according to the testimony in behalf of plaintiff, Alfonso Robles, started to remove the platform as the foreman had directed, and as they were in the act of doing so plaintiff fell on the rail and fractured his left thigh bone.
The fall and consequent injury were caused, it is alleged, by the three following negligent acts of the defendant: First, it had carelessly and negligently allowed to remain under the platform on the track a large rock which he stepped on while lifting the platform and caused him to fall upon the roadbed; second, that two employees of defendant, who assisted him in removing the platform, were negligent and careless, in that one or both of them shoved or pushed it against him and caused him to fall; and, third, that the defendant negligently and carelessly failed to provide sufficient help to assist him in removing the platform.
The defendant demurred to the complaint and the amended reply and pleaded a general denial, a settlement and release in bar of plaintiff's right to recover, his own negligence as the proximate cause of the injury, and the assumption of the risk. Plaintiff replied to the plea in bar by admitting that he received $350 from defendant, but denied that he signed a release, and alleged that if he did sign an instrument of that purport he did not know it at the time. The defendant's demurrer to the complaint and the amended reply were overruled and the case went to trial before a jury.
Two of the charges of negligence were eliminated by the court -- the first and the third -- but the second, the negligence of Robles in pushing the platform against him and causing him to fall, was permitted to go to the jury, and upon it the verdict for plaintiff was returned. From the judgment entered thereon and the following orders the defendant appeals: Denying its motion for a new trial, denying its motion for judgment notwithstanding the verdict, holding that plaintiff's motion for a new trial would be denied if both parties should within ten days file their consent that the judgment be increased to $6,500, and granting plaintiff a new trial for the purpose of ascertaining the amount of damages only.
In several of its assignments the defendant attacks the sufficiency of the evidence relating to Robles' act in pushing the platform against plaintiff and causing him to fall as constituting negligence under the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59). To determine whether this contention is well founded, a statement of the facts causing the injury a little more in detail is required. It appears that Robles was one of the thirteen men working on the bridge near Sentinel, and the evidence in behalf of the plaintiff discloses that as he and Jose Dominguez were in the act of lifting the platform from between the rails, Robles, who had helped remove it many times, came from the tool car near by and took hold of it hurriedly to aid them. Robles and Dominguez were both at the west end looking toward Sentinel, while plaintiff was at the east end alone looking toward Yuma. They lifted it about as high as the knees or waist and were moving sidewise or north with it when it was suddenly and unexpectedly pushed east against plaintiff, whose foot slipped at the same time, whereupon he fell on the rail with the platform on top of the lower part of his body. Robles said:
Jose Dominguez testified, in part, as follows:
"Gastelum and I were lifting it up, and when we had it already lifted about three feet, Robles came in on the right-hand side and placed his hand upon it, and in shifting or changing Mr. Gastelum fell down; I saw Robles shift his hand; saw the platform moving towards Gastelum, and he fell down; when Gastelum fell the platform was over his knee; Gastelum fell at the same time that it was moved; when he shifted his hands."
The plaintiff testified, in part, as follows:
In reply to questions propounded by the court, he said that he lifted his right foot and placed it outside the rails (going north sidewise), followed this by putting the left foot on a rock inside the rail, which caused it to slip, and as he did so he was pushed (eastward or backward) and fell; that slipping on the rock and being suddenly and unexpectedly pushed at the same time caused him to fall that it did not require a very hard push to cause him to fall, since he stepped on the rock at the same time they pushed him.
Robles and Dominguez each made written statements relative to the cause of the accident immediate following its occurrence which were in conflict with the foregoing, and these were introduced in evidence by the defendant. They both admitted making the statements, but gave reasons for doing so that evidently satisfied the jury. A Written statement signed by the plaintiff a few minutes after the accident, and reading as follows, was also introduced by the defendant:
"I was lifting a small platform used to take off motor car and placed my foot on rail which slipped off rail, causing me to fall on rail, dislocating left thigh."
The plaintiff, however, denied that he told the foreman immediately following the accident what this statement attributes to him. Three or four of the men in the gang placed on the witness-stand by the defendant testified and Robles did not have hold of the platform when plaintiff fell, but that he was some distance away.
This clearly discloses a conflict in the evidence on the question whether the platform was...
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