Southern Pacific Company v. Heavingham

• Decision Date: 27 August 1956
• Docket Number: No. 14813.,14813.
• Citation: 236 F.2d 406
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Appellant, v. Mary V. HEAVINGHAM, Special Administratrix of the Estate of Arthur V. Heavingham, deceased, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F.2d 406 (1956)

SOUTHERN PACIFIC COMPANY, a corporation, Appellant, v. Mary V. HEAVINGHAM, Special Administratrix of the Estate of Arthur V. Heavingham, deceased, Appellee.

No. 14813.

United States Court of Appeals Ninth Circuit.

August 27, 1956.

Dunne, Dunne & Phelps, Guy L. Colburn, Jr., A. B. Dunne, John W. Martin, San Francisco, Cal., for appellant.

Hepperle & Hepperle, Herbert O. Hepperle, Robert R. Hepperle, San Francisco, Cal., for appellee.

Before HEALY, POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

This is an appeal from a judgment recovered by the appellee as plaintiff in the court below against the appellant Southern Pacific Company under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The only errors specified relate to the refusal of the trial court to instruct the jury that they could not include in their award any sum for conscious pain and suffering by the plaintiff's decedent, and the giving of an instruction by the court which permitted the jury to take into consideration that sort of damages.

Heavingham, the decedent, was employed as head brakeman on a Southern Pacific freight train which ran into and collided with the rear of another freight train near Davis, California. At the time of the collision Heavingham, the engineer, and the fireman were in the cab of an engine. On this engine the cab was on the front. The engineer had received a caution signal and had reduced speed preparatory to stopping when the caboose of the train ahead suddenly appeared through the fog in which the train was operating and although emergency brakes were applied, the collision occurred. Both the fireman and the engineer were thrown through the windows and clear of the trains. The fireman testified that he climbed up on the rear of the engine and shut the oil valve off to put out the fire in the firebox and then walked up the running board to the cab. He tried to get in but the steam in the cab was so hot that he could not get near it. He made an unsuccessful effort to reach the cab on the other side of the engine and then opened the valve which released the steam from the boiler. During this time the escaping steam was very noisy. He heard no sound from the cab. After an ambulance arrived, he went back to the engine, walked to the cab window and looked inside and saw the decedent. He told the engineer who was with him that Heavingham was dead. No other witness testified as to the circumstances of the brakeman's death.

The argument here is that there is completely lacking in the record evidence sufficient to support any award for conscious pain and suffering and that it was error for the court to instruct the jury, as it did, that such damages might be taken into consideration in fixing the amount of the recovery.¹ Appellant requested an instruction that the jury might not make any such award.

The testimony indicates that the cab was not crushed but remained intact after the accident. A reasonable inference is that death was caused by the steam which apparently filled the cab.² We are of the opinion that a jury could properly infer from the evidence before it, considered in the light of what is common knowledge relating to the effect of steam, that death was caused either by burns or by suffocation from the steam.

Under the Act, a personal representative such as this appellee, is permitted to recover on behalf of the designated beneficiaries, "not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived." St. Louis, Iron Mt. & S. Ry. Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 706, 59 L.Ed. 1160. In that case the railroad employee received injuries which caused his death when a car passed over his body breaking his bones and lacerating and opening his flesh and abdomen. He lived about 30 minutes. If he remained conscious his injuries were such as to cause him extreme pain and suffering. The jury found that he was conscious and the court, holding there was evidence from which the jury reasonably could find that while he lived he felt conscious pain and suffering, upheld the recovery. The court then proceeded to state by way of dictum the following rule upon which appellant principally relies here: "But to avoid any misapprehension it is well to observe that the case is close to the border line, for such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages under statutes like that which is controlling here." 237 U.S. at page 655, 35 S.Ct. at page 705.

As we understand appellant's argument, it is that there is no evidence in this case that decedent lived and was conscious for anywhere near 30 minutes (the period of time shown in the Craft case, supra,) and since that case was declared to be "close to the border line", we must hold that there was a lack of evidence of survival and consciousness for a sufficient period of time to permit recovery for pain and suffering here.

The court here instructed, (footnote 1, supra,) that if the decedent was conscious after the injury and before his death for "an appreciable period of time", and if his pain and suffering were "not as a mere incident of the death or substantially contemporaneous with it", then the jury might take into consideration pain and suffering in awarding damages. It is not to be doubted that this instruction is hardly in line with the language of the dictum in the Craft case quoted above, but we think that the trial judge was justified in considering that nearly 40 years had elapsed since the Craft decision, and that in the meantime the Supreme Court has in a number of decisions strongly upheld the right of the parties to have the jury determine the facts in such cases,...