Tremelling v. Southern Pacific Co.

• Decision Date: 04 December 1917
• Docket Number: 3092
• Court: Utah Supreme Court
• Parties: TREMELLING v. SOUTHERN PACIFIC CO

170 P. 80

51 Utah 189

TREMELLING v. SOUTHERN PACIFIC CO

No. 3092

Supreme Court of Utah

December 4, 1917

Appeal from District Court of Salt Lake County, Third District; Hon T. D. Lewis, Judge.

Action by Mrs. Hattie Tremelling, administratrix, against the Southern Pacific Company.

Judgment for plaintiff. Defendant appeals.

REVERSED, and cause remanded with directions to grant a new trial.

Geo. H Smith, J. V. Lyle, and B. S. Crow for appellant.

APPELLANT'S POINTS

Since this action was brought under the Federal Employer's Liability Act, it should be borne in mind that the rights and obligations of the parties hereto depend upon such act and applicable principles of the common law as interpreted and applied in Federal courts. (Southern R. Co. v. Gray, 336 S.Ct. 561; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062, L. R. A. 1915C, 1, 34 S.Ct. 635 Ann. Cas. 1915B 475, 8 N. C. C. A. 834; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433, 35 S.Ct. 865, 9 N. C. C. A. 265; Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406.)

It is a principle of almost universal application that where the testimony leaves the matter uncertain and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half dozen causes and find that the negligence of the employer was the real cause, when there is not satisfactory foundation in the testimony for that conclusion. (Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275; Midland V. R. Co. v. Fulgham, 181 F. 91; Reid v. S. P., L. A. & S. L. R. R. Co., 39 Utah 617; Searles v. Manhattan Ry. Co., 101 N.Y. 661, 5 N.E. 66; Whitehouse et al. v. Bryant L. & S. M. Co., (Wash.) 97 P. 751; Glancy v. McKees Rocks Bourow, 89 A. 972; Puckhaber et ux. v. Southern Pac. Co., 132 Cal. 363, 64 P. 480; In re Lucke's Estate, 123 P. 46.)

Willard Hanson for respondent.

RESPONDENT'S POINTS

The court "cannot properly undertake to weigh the evidence. His duty is to take that view of the evidence most favorable to the party against whom it is moved to direct a verdict and from that evidence and the inferences reasonably and justifiably to be drawn therefrom determine whether or not under the law a verdict might be found for the party having the onus."

Mr. Justice Lurton, in Railway v. Lowery, 74 F. 467, 20 C. C. A. 596.

To the same effect are:

Mitchell v. Railway Company, 197 F. 528 (C. C. A.); Shadoan v. Railway, 220 F. 68 (C. C. A.); Smith etc. Co. v. Detroit etc. Co., 220 F. 600 (C. C. A.).

The Court will look at the evidence and the most favorable inferences therefrom in behalf of the plaintiff to determine whether some reasonable men might conclude therefrom that it was probable that the deceased came to his death in the way claimed. But in no other sense does the appellate court weigh the evidence. 38 Cyc. 436; Lincoln v. Power, 151 U.S. 436; Railway v. Lowery, 74 F. 467; Mitchell v. Railway Co., 197 F. 528 [C. C. A.]; Shadoan v. Railway, 220 F. 68, [C. C. A.]; Smith etc. Co. v. Detroit etc. Co., 220 F. 600 [C. C. A.]; Ewell v. Mining Company, 23 Utah 192; Stone v. Railroad Co., 32 Utah 185; Tucker v. Laundry, 30 Utah 273; Dunn v. S. L. & O. R. Co., 47 Utah 137; James v. Robertson, 39 Utah 414; Railroad v. McDade, 191 U.S. 64.

It is not sufficient that the defect be obvious, but unless the risk is so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated it, there is no assumption of risk. Schlemmer v. Railroad, 220 U.S. 590, 55 L. 596; Texas & P. R. Co. v. Harvey, 228 U.S. 319, 57 L. 852; Gila Valley R. Company v. Hall, 232 U.S. 94, 58 L. 521; Seaboard etc. Co. v. Horton, 232 U.S. 492, 58 L. 1063; Chesapeake etc. Co. v. DeAtley, 241 U.S. 310, 60 L. 1016; Railroad v. McDade, 191 U.S. 64, 48 L. 96; T. & P. R. Co. v. Archibald, 170 U.S. 665, 42 L. 1188.

The master cannot conclude the servant by showing that he acted as others ordinarily acted; the question remaining, even after such a showing when made, as to whether he was negligent. Texas & Pacific Railway Company v. Behymer, 189 U.S. 468; 47 L. 905; Nyback v. Lumber Company, 109 F. 732; Redfield v. Railway, 112 Cal. 220; 43 P. 1117; McCormick v. Burandt [Ill.], 26 N.E. 588; Jennings v. Edgefield [S. C.], 52 S.E. 113; Silverson v. Jenks, 92 N.Y.S. 382; Stone v. Railroad Company, 35 Utah 305; 3 Labatt M. & S., Sec. 947.)

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff sued, on behalf of herself and infant child, to recover damages caused by the death of her husband. The action is predicated upon the federal Employers' Liability Act of April 22, 1908.

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 consisted 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.

There is not the slightest dispute respecting the facts, which, briefly stated, are as follows:

Tecoma is the name of a station and also the name of a small town on defendant's line of railroad in the state of Nevada. Another station on its line is called Montello, which is about 4.9 miles west of Tecoma. Tecoma station is about three-fourths of a mile west of the town of Tecoma. On the morning of the 9th day of December, 1915, the deceased was employed as head brakeman on a fast freight composed of 46 cars loaded with fruit going east. The train was in charge of Conductor D. A. Cramer and a crew consisting of two brakemen, of which the deceased was one, and a fireman and engineer. The conductor testified for the plaintiff. He, in substance, said that the train in question left Montello station at eight fifty-three o'clock on the morning in question, and that it passed Tecoma without stopping at about nine fifteen o'clock. The other trainmen who testified for the plaintiff corroborated the conductor's statements in that regard. Before leaving Montello station the conductor "picked up" a freight car on which a new pair of wheels had been placed at Montello. Before leaving Montello the conductor spoke to the deceased. We quote from the testimony of the conductor as found in the bill of exceptions. He said: 'I says, 'Kid, there is a car there with a pair of new wheels put in; kind of keep your eye on it to see that it don't run hot.' " The conductor also said that by the phrase "keep your eye on it" it was not intended and was not understood that the deceased was expected to do more than "to keep on the lookout to see that there is no hot box." The car was placed next to the tender in the rear of the engine, so that it was the head car in the train. The train passed Tecoma station without stopping, and both the rear brakeman and the deceased were at their posts on the top of the train, the deceased being near the head end of the train. The conductor and the rear brakeman testified that in passing the town of Tecoma the train was running "about twenty-five or thirty miles an hour." The rear brakeman said that in passing Tecoma station, which is about three-fourths of a mile west of the town of Tecoma, where the accident occurred, he saw the deceased at his post on the train near the front end and that he gave him the "proceed signal"; that the deceased repeated the signal to the engineer, and the latter answered it by the usual two blasts of the whistle, and the train passed on. That is the last that the rear brakeman saw of the deceased. The fireman, however, testified that at about the time just referred to by the rear brakeman he passed from his side of the engine to the engineer's side and looked back toward the rear of the train, and in doing so saw the deceased standing in the "stirrup," or the lower step (which is an iron step on which the trainmen stand in going on or off the cars), as though he were looking at a hot box. The fireman, however, says that he only got a "glimpse of him." That was the last time the deceased was seen alive. About a half or three-fourths of an hour after the train had passed the town of Tecoma one A. W. Purdy discovered the body of the deceased. The following plat will, to some extent, assist the reader to a better understanding of what follows:

[SEE PLAT IN ORIGINAL]

The track marked "M. L." is the main line on which the freight train on which the deceased was employed was running at the time. The railroad at the point in question, when looking east, runs in a northeasterly direction. The track marked "S. T." is the side track in question, and the parallelogram marked "C" on the plat represents the large steel freight car which was standing on the side track and with which, it is contended, the deceased came in contact. The point marked "X" on the plat is the point at which the witness testified there were indications, as hereinafter stated, where the deceased first...