Tremelling v. Southern Pac. Co.

• Decision Date: 10 June 1927
• Docket Number: 4510
• Court: Utah Supreme Court
• Parties: TREMELLING v. SOUTHERN PAC. CO

257 P. 1066

70 Utah 72

TREMELLING v. SOUTHERN PAC. CO

No. 4510

Supreme Court of Utah

June 10, 1927

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by Mrs. Hattie Tremelling, administratrix of the estate of Claude J. Tremelling, against the Southern Pacific Company. From a judgment of nonsuit, plaintiff appeals.

AFFIRMED.

Beck &amp Beck, and Walton & Walton, all of Salt Lake City, for appellant.

Bagley Judd & Ray, of Salt Lake City, for respondent.

THURMAN, C. J. CHERRY, STRAUP, HANSEN, and GIDEON, JJ., concur.

OPINION

THURMAN, C. J.

This action was instituted by plaintiff to recover damages for the death of her husband, Claude J. Tremelling, who at the time of his death was in the employment of defendant as a brakeman on one of its railroad trains. The defendant was operating an interstate railroad between Ogden, Utah, and Montello, Nev., and the action was brought under the provisions of the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665). The death of deceased occurred on December 9, 1915, and the action was commenced in the district court of Salt Lake county, Utah, in June, 1916. The plaintiff had judgment, and defendant appealed therefrom to this court. The judgment was reversed on the grounds that the evidence was insufficient to sustain the verdict. 51 Utah 189, 170 P. 80. A new trial was had in April, 1926, resulting in a nonsuit of the plaintiff and judgment thereon, from which judgment plaintiff prosecutes this appeal.

The pleadings in the case are the same as when the case was commenced, and the substance thereof is briefly stated in the opinion of this court on the former appeal at page 193 (170 P. 80) of the report, as follows:

"The allegations of negligence, in substance are that the defendant constructed and maintained a side track at a station near Tecoma on its line of railroad in the state of Nevada; that defendant's negligence consisting in constructing and maintaining said side track so near to the main line of its railroad, and in placing a large freight car thereon, that the deceased, who was employed as a brakeman on one of defendant's freight trains, and while in the discharge of his duties on said train, on the 9th day of December, 1915, came in contact with said car on said side track while said train was passing the same, and was instantly killed. The defendant, while admitting the construction and maintenance of said side track and placing the freight car thereon alleged, nevertheless denied all acts of negligence, and averred in its answer that the deceased came to his death by reason of his own carelessness and negligence, and also averred that he had assumed the risk of injury, fully stating the facts in that regard."

On the last trial of the case most of the evidence introduced by plaintiff was read to the jury from the transcript on appeal from the former judgment. The new evidence in the case consists mainly of the testimony of two medical experts and one meteorologist from the Weather Bureau, all of whom reside in Salt Lake City.

The undisputed physical facts relating to the death of deceased, as disclosed by the evidence, are, as follows: Defendant's railroad from Montello to Ogden runs substantially east and west. At Tecoma, a town about five miles east of Montello, a side track was constructed close to the main line, on the south side thereof, and on the morning of the accident there was a large box car standing thereon. Several measurements relating to the cars on both the main line and the side track were stipulated by the parties and will hereinafter be stated. The train on which deceased was employed when the accident occurred left Montello going east at 8:53 a. m. on the day of the accident. It was a cold, frosty morning. The crew of the train consisted of a conductor, engineer, fireman and two brakemen. Deceased was head brakeman and was informed by the conductor before leaving Montello that he had put a car on with a new pair of wheels. He directed deceased to keep his eye on the car to see that the wheels "didn't run hot." The wheels in question were the rear wheels on the car next to the engine. The rear brakeman testified that he gave deceased the proceed signal on leaving Montello and deceased conveyed it to the engineer; that the last time he saw deceased was at Tecoma on top of the train. The fireman testified that after leaving Montello he first saw deceased on the engine; that after he saw him on the south side of one of the cars--either the head car or the next one--as they proceeded through Tecoma; that deceased was either on the rear of the head car or on the front of the next car; that he was standing in the stirrup and had hold of the grabiron looking down "apparently looking at a hot-box." Witness only got a glimpse of deceased and supposed he was looking at a hot-box. He could not tell whether deceased was looking forward or backward. He supposed that deceased had both feet in the stirrup, but was not sure; that he merely glanced at him and then turned and looked at houses on the other side of the train. Witness could not say whether deceased was in the usual position. He had never seen it done that way but once or twice before. The usual way to watch a hot-box was to stand in the gangway of the engine and look back. He did not know whether there was a hot-box on that train or not.

A half or three quarters of an hour after the train passed through Tecoma the body of deceased was found by a Mr. Purdy, maintainer of the defendant company. He reported finding the body to the witness Lee, a storekeeper at Tecoma. Lee testified that he and Purdy went to the body, which was lying flat on its stomach. "His head was right up against the rail of the passing track with the feet towards the main line." One hand was out, and that was all they could see, as the mackinaw worn by deceased was over his head. There was a heavy frost on the ground. The indications were that the body had struck the ground heavily in the middle of the space between the two tracks and just opposite the center of the box car. From that point it slid to the point it was found against the north rail of the side track near the northeast corner of the box car. The testimony of Lee as to the marks on the ground and the position of the main line and side track with the box car thereon is fairly well illustrated by a diagram found in the opinion of the court on the former appeal, at page 195 of the report. The marks showing the body struck the ground and slid to where it was found were clearly indicated by the gravel being thrown up and the frost being brushed away. The buttons on deceased's vest were torn off or broken. It bore marks as if he had slid on his stomach to the point where they found it. Lee and Purdy examined the north side and west end of the box car to discover if the body had hit the car. The frost was about a quarter of an inch thick. They could find no place where the frost had been disturbed. Witness said if there had been no frost on the car he would have seen it the first thing. There was blood where the body struck the ground and all along the mark to where it stopped. There was no mark or blood discovered on the car, nor was there any mark or blood discovered on the ground west of where the body struck the ground. They spent about ten minutes in examining the car. There was a tear in the back of deceased's mackinaw. They found a mitten glove and turned it over to the claim agent. Witness testified that the back of deceased's skull was crushed to a pulp--a little more to the right side than the left. There were slight scratches on the face and one eye was discolored. There were also some cinders in the face. There were no cuts through the skin at all on the head. Deceased had bled through the ears, nose and mouth, and the blood on the ground apparently came from those places. There were no projections on the train that extended out as far as the point where deceased fell.

At the last trial of the case the skull was introduced as an exhibit and is made part of the record on appeal. The back part of the skull from the base of the brain to about half way to the crown appears to have been badly shattered. Five pieces became detached from the skull. The first is 4 1/2 inches long by 3 in width at the widest part; the second about 2 1/2 inches in length and the same in width; the third about 2 by 2 inches, and the fourth about the same. All of the pieces are irregular in form, and the above measurements are from one extreme to the other, as to each piece measured. There are three small pieces not detached from the skull indicating fractures from the back of the skull towards the right ear.

This minute description is of only slight materiality, but it more nearly states the facts than to describe the back of the skull as having been crushed to a pulp.

Lee and Purdy did not disturb the body, but waited until the arrival of the coroner, who appeared about an hour after they had made their examination. The coroner and his jury prosecuted a further examination after their arrival. There was still frost on the car and the ground, but, as stated by witness Lee, not quite as heavy as when he and Purdy arrived at the body, which was after 10 o'clock, and he did not think it was freezing at that time.

Mrs. Tremelling, the plaintiff, testified that the tear in the mackinaw worn by deceased was not there when he left home a few days before the accident, and that when she last saw him the buttons were on his vest.

The train upon which deceased was employed that morning was composed of 46 cars carrying fruit, and the caboose. They were Pacific fruit express cars known in railroad parlance as "P. F. E." ...