Union Pac. R. Co. v. Stanger

• Decision Date: 07 January 1943
• Docket Number: No. 10063.,10063.
• Citation: 132 F.2d 982
• Parties: UNION PAC. R. CO. v. STANGER et ux.
• Court: U.S. Court of Appeals — Ninth Circuit

132 F.2d 982 (1943)

UNION PAC. R. CO. v. STANGER et ux.

No. 10063.

Circuit Court of Appeals, Ninth Circuit.

January 7, 1943.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson and L. H. Anderson, both of Pocatello, Idaho, for appellant.

John Ferebauer, of Idaho Falls, Idaho, and W. H. Witty, Clyde Bowen, and Walter H. Anderson, all of Pocatello, Idaho, for appellees.

Before GARRECHT, HANEY and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal from a money judgment in the sum of $19,000, decreed and entered by the United States District Court, sitting under a proper stipulation without the aid of a jury, against the Union Pacific Railroad Company, a Utah corporation, in favor of Phyllis Stanger and Albert G. Stanger, wife and husband, as the measure of compensation for the personal injuries suffered by Phyllis Stanger while riding as a paid passenger in one of the Union Pacific Railroad Company's trains. There is no item of consequential or other damage to Albert G. Stanger entering into the total sum awarded in the judgment, and no question is raised herein upon the fact that the judgment runs to both Phyllis Stanger and Albert G. Stanger.

There were two actions consolidated. One was by both Phyllis Stanger and Albert G. Stanger upon injuries sustained by Phyllis Stanger. One was by Albert G. Stanger for personal injuries sustained by him and the judgment went against him. The Union Pacific Railroad Company alone appeals.

Appellant says: "The evidence is insufficient to support a finding that defendant was guilty of any negligence as charged in the complaint, for the reason that plaintiffs did not offer or introduce any evidence of negligence but relied entirely on an inference of negligence arising from the derailment of the train and defendant's evidence completely rebutted any inference of negligence by establishing without dispute that the track and roadbed were in good condition, that there was no defect in the passenger equipment but that the derailment was caused by a broken wheel resulting from internal stress which was latent and could not have been found or discovered by any kind of inspection prior to the time it broke."

At the trial, plaintiffs, appellees here, presented evidence to the effect that they were paying passengers on defendant's railroad train, and that the train was derailed. There is no issue upon these matters. Appellees also presented evidence to the effect that they were injured in the wreck, but appellant denied it and introduced supporting evidence.

It is conceded that this state of the case presents an inference of negligence upon the part of defendant under the doctrine of res ipsa loquitur, and there is no issue made upon the application of the force of the res ipsa loquitur rule as it is generally defined.

The defendant introduced evidence to the effect that the train involved in the derailment was traveling at the normal rate of 60 or 65 miles per hour; that the day before the accident, the switch and track were inspected and found to be in perfect condition; that around 20 feet from a frog accommodating a switch from the main track the section foreman discovered "a flat place about one-half inch, like something had been pounded into the top of the ball of the rail". Easterly, about 16 feet from this flat spot, and in the direction the train was traveling the foreman found "where the rail had begun to break away and was torn out from there on * * * for around three hundred feet". The witness testified that it was 8° or 10° above zero; that he had not seen broken rails in "this class of rails", but he had heard of them. Evidence was introduced by defendant to the effect that after the accident the cars were inspected and nothing was found to be missing and nothing was found to be defective except a broken wheel; that all of the broken parts of the wheel were recovered and shipped to a qualified metallurgist, who tested it for the cause of the break; that this test disclosed that the wheel broke due to internal stresses (defects) developed during the manufacture of the wheel, and that such stresses could not be discovered by any kind of inspection short of "cutting the wheel up"; that the cause of the break were the stresses, which were present in the wheel when it left the mill; that the wheel was manufactured in 1928, and there were thousands of the same kind and model in operation on the defendant's and other railroads; that since 1912, only two wheels have broken from like causes; and that a chemical analysis of the wheel showed it to conform to specifications of the American Railway Association. To this proof there was no counter evidence proffered.

Notwithstanding such lack of counter evidence, the trial court found that the defendant failed "to rebut the inference of negligence drawn from the facts and circumstances of this accident that due care, inspection and management and control had been employed by the defendant", and that "from a fair analysis of defendant's evidence * * * the defendant * * * did not, prior to the accident exercise or use or discharge that degree of care of inspecting, maintaining, managing and operation of...