Thompson v. Atchison, T. & S.F. Ry. Co.
| Decision Date | 14 April 1950 |
| Citation | 217 P.2d 45,96 Cal.App.2d 974 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THOMPSON v. ATCHISON, T. & S. F. RY. CO. Civ. 17400. |
Hilderbrand, Bills & McLeod, Oakland, for appellant.
Robert W. Walker, H. K. Lockwood, Parker, Stanbury & Reese, Los Angeles, for respondent.
This is an action for personal injuries brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Defendant's motion for nonsuit was denied as was its motion for a directed verdict. The jury failed to arrive at a verdict and was dismissed whereupon defendant moved for judgment under section 630 of the Code of Civil Procedure 1 and its motion was granted. Plaintiff appeals from the judgment.
The facts are undisputed. Plaintiff was employed by defendant at its railroad station at Muroc. He fell and injured his hand while engaged in pushing a baggage truck on the station platform. The platform was made of blocktop. There was a rise of ten inches in the width of the platform from the tracks to the station house, a distance of thirty feet, making a slope or grade of 2.77 per cent. Plaintiff at the time of his fall was proceeding at a forty-five degree angle toward the station house, the slpe at that angle being approximately two per cent. The baggage truck was the standard railray express truck and at the time of the accident it was only half loaded, the load weighing between 400 and 500 pounds. There was a certain amount of sand and gravel on the platform at the time but plaintiff's cause of action is founded upon his allegation that 'defendant carelessly and negligently maintained the said platform in that the same was caused to slope from the said depot down toward defendant's mainline tracks' and 'defendant further carelessly and negligently failed and neglected to provide plaintiff with any fellow employee to assist in moving said truck.'
The only question to be determined is whether there was in the record any evidence of negligence which should have been submitted to a jury.
Plaintiff contends that the evidence is such that fair-minded men might draw different inferences and the case therefore falls within the rule set forth in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497, and Bailey v. Central Vermont R. Co., 319 U.S. 350, 353, 63 S.Ct. 1062, 87 L.Ed. 1444, 1447.
In the Wilkerson case the plaintiff was injured by falling into a wheelpit in the railroad yard when crossing the pit on a narrow boardway. There was a conflict in the evidence as to whether switchmen and other employees habitually used the board as a walkway even after the railroad had put up safety chains enclosing the pit. The court held that since there was a conflict as to the continued use of the board as a walkway by pit workers alone or by employees generally it was for the jury and not the court to resolve that conflict.
In the Bailey case the plaintiff was injured while unloading cinders from a hopper car on a bridge over a cattle pass. The court stated that the nature of the task undertaken by Bailey, the hazards involved, the effort which it required, the kind of footing he had, the space in which he could stand, the absence of a guardrail, the height of the bridge above the ground and the fact that the car could have been unloaded on level ground were all facts and circumstances for the jury to weigh and appraise in determining whether the defendant was negligent in furnishing Bailey with that particular place in which to perform the task.
Under the Employers' Liability Act the duty which rests upon defendant is the same as at common law, namely, to use reasonable care in furnishing its employees with a safe place to work and safe tools and appliances. Negligence as used in the act is the violation of that duty. Bailey v. Central Vermont R. Co., 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444. The employer is liable for injuries which can be attributed to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances. Wilkerson v. McCarthy, supra.
In the instant case the only issue is whether in maintaining its station platform at a 2.77 per cent slope defendant used reasonable care in furnishing plaintiff with a safe place to work and whether under those circumstances defendant was negligent in not providing plaintiff with assistance.
The rule is established that 'when the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the...
To continue reading
Request your trial
-
Schultz v. Union Pac. R. Co.
...F. Ry. Co., 92 Cal.App.2d 490, 207 P.2d 126; Ericksen v. Southern Pacific Co., 39 Cal.2d 374, 246 P.2d 642; Thompson v. Atchison, T. & S. F. R. Co., 96 Cal.App.2d 974, 217 P.2d 45; Perrett v. Southern Pacific Co., 73 Cal.App.2d 30, 165 P.2d 751; Haskins v. Southern Pac. Co., 3 Cal.App.2d 17......
-
Ericksen v. Southern Pac. Co.
...employer cannot be justly charged with negligence as to matters over which he has no control.' See also Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 977, 217 P.2d 45. It is argued that lack of direct control of the premises freed the defendant from responsibility no matter h......
-
O'Neal v. Meier & Frank Co.
...plaintiff was injured because of defendant's failure to provide a sufficient number of fellow employees. Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 217 P.2d 45; Lowden v. Bowen, 199 Okl. 180, 183 P.2d 980; White v. Owosso Sugar Co., 149 Mich. 473, 112 N.W. 1125; Harrison v......
-
Stone v. New York, C. & St. L. R. Co., 42803
...the duty of anticipating that plaintiff might be injured in any way by complying with the order. Compare Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 274, 217 P.2d 45. Plaintiff argues that Stoughton 'had an obligation to determine what was holding the tie before giving an order ......