Union Pac. R. Co. v. De Vaney

• Citation: 162 F.2d 24
• Decision Date: 09 June 1947
• Docket Number: No. 11426.,11426.
• Parties: UNION PAC. R. CO. v. DE VANEY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

162 F.2d 24 (1947)

UNION PAC. R. CO. v. DE VANEY.

No. 11426.

Circuit Court of Appeals, Ninth Circuit.

June 9, 1947.

E. E. Bennett, Edward C. Renwick and Malcolm Davis, all of Los Angeles, Cal., for appellant.

Desser, Rau & Christensen, of Los Angeles, Cal., for appellee.

Before STEPHENS, HEALY and BONE, Circuit Judges.

STEPHENS, Circuit Judge.

Martin DeVaney was awarded the sum of $2,883.66 against the Union Pacific Railroad Company in an action under Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., as compensation for injuries which the court found he had sustained as the proximate result of Union Pacific's negligence. The company appeals, claiming that the evidence was insufficient to support the findings of fact, that the doctrine of res ipsa loquitur is not applicable to the case, that there is no evidence of any negligence on the part of the appellant which proximately contributed to the happening of the alleged accident, and that there was no evidence of proximate causal connection between the alleged accident and injury complained of.

There is evidence to support the following version of the accident. Appellee worked on a local freight train as a brakeman, and it was his job to observe the running condition of the train and to follow instructions of the conductor as to what cars should be placed at certain stations and also to pick up cars as the conductor would instruct him. It was his duty to examine the train from end to end at every stop or to walk as far as he could and catch the rear end of the train as it passed by. He was to examine the condition of the running gear and the general safety of the train and to see that everything was in order as far as he could observe. The train traveled over a track with many rather sharp curves as it proceeded through Cajon Pass in California. At the time of the accident appellee was walking along the left side of a flat car to investigate the cause of flying sparks he had noticed forward. Two army trucks were on the flat car, and one had worked loose from its fastening. As he proceeded, holding onto the truck, it swayed and his feet became entangled in some broken wires that had been used in fastening the truck to the car, and he fell from the train.

He returned home the night of the accident and noticed that his abdomen was swollen and inflamed, and he was in considerable pain. The next day he tried to see the company doctor, but the doctor was unavailable. He then reported for work and went to the town of Yermo, where he saw a Dr. Balachey, a company doctor, who examined him and advised surgery for hernia, and advised him to see Dr. Nevin, a company doctor. This was in January or early in February. At Dr. Nevin's office he was sent to Dr. Gamette, who advised as did Dr. Balachey. Appellee, however, was able to work periodically but continued to experience pain until he was operated on in November.

Section 1 of the Federal Employers' Liability Act makes a carrier liable in damages for any injury which results in whole or in part from the negligence of any of its officers, agents or employees. This duty of care becomes even greater as the risk increases. In Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 664, 21 S. Ct. 275, 278, 45 L.Ed. 361, the court states that: "Reasonable care becomes, then, a demand of higher supremacy; and yet, in all cases it is a question of the reasonableness of the care; — reasonableness depending upon the danger attending the place or the machinery." See Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; McGivern v. Northern Pacific Rd. Co., 8 Cir., 132 F.2d 213. In our case the mountainous terrain over which the freight train traveled created considerable risk, which required that the trucks on the flat car should have been fastened securely. The court found that they were not so fastened and that the company thereby failed in its duty to the appellee. It was foreseeable that the wiring described might break and thereby create an unsafe condition for the employees, whose duty it was to cross the flat car. There was also evidence in the case that wiring used on other occasions had likewise broken. There is nothing to support the allegation that appellee, under his duty of inspection, should have seen the dangerous condition prior to the accident. Appellee inspected the...