United States v. Marshall

• Decision Date: 22 March 1956
• Docket Number: No. 14237.,14237.
• Citation: 230 F.2d 183
• Parties: UNITED STATES of America, and Union Pacific Railroad Company, Appellants, v. Isaac MARSHALL, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

230 F.2d 183 (1956)

UNITED STATES of America, and Union Pacific Railroad Company, Appellants, v. Isaac MARSHALL, Appellee.

No. 14237.

United States Court of Appeals, Ninth Circuit.

January 30, 1956.

Rehearing Denied March 22, 1956.

COPYRIGHT MATERIAL OMITTED

Sherman F. Furey, Jr., U. S. Atty., Boise, Idaho, for appellant, United States.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson, E. H. Casterlin, E. C. Phoenix, Pocatello, Idaho, for appellant, Union Pacific R. Co.

B. W. Davis, Pocatello, Idaho, for appellee.

Before HEALY and BONE, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

The action below was for personal injuries based on the claimed negligence of the United States and the Union Pacific Railroad Company, hereafter referred to as the Railroad. Jurisdiction as to the United States was based on the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2674. Jurisdiction as to the Railroad was based on diversity of citizenship, 28 U.S.C.A. § 1332.¹ After a trial, before the court without a jury, a joint and several judgment was entered against the two defendants for $75,000.00 general damages, $3,705.75 special damages and costs. Within time, each defendant has appealed. The appeals raise the questions of the sufficiency of the evidence to support the court's finding of concurrent negligence on the part of the Railroad and the United States, and whether the United States, if negligent, is relieved from liability by the intervening negligence if any, on the part of the Railroad.

Neither the United States nor the Railroad attacks the amount of the award, neither asserts contributory negligence on the part of Marshall, and neither asserts error in the admission or rejection of evidence. When questioned by this court during argument, the United States contended the responsible negligence was that of the Railroad; and the Railroad contended the responsible negligence was that of the United States.

Marshall's amended complaint, filed May 8, 1952, sought damages for personal injuries sustained on August 23, 1951, in Bannock County, Idaho, resulting from the explosion of a tank of anhydrous ammonia gas.

Prior to August 23, 1951, the United States received at its depot at Ogden, Utah, the component parts of an ice plant, included in which were eight containers of compressed anhydrous ammonia gas, listed as a dangerous article by the Interstate Commerce Commission, 49 CFR 72.5. A green label attached to each tank, identified the contents. The tanks were thereafter crated by government employees, covering the aforementioned labels; and the dismantled ice plant, including the crated tanks of gas, was loaded on Rock Island flat car No. 90344. The government employees prepared a shipping or packing list itemizing every article contained in the car, including the tanks of anhydrous ammonia. As is the customary practice, the packing list was put in an envelope, attached to one of the shipping crates and covered with a fiber board marked "Packing List." The bill of lading was prepared from the shipping list but described the shipment as "12 Bx. Machinery NOIBN (ice plant)."² The destination was the Seattle Port of Embarkation.

The flat car was thereafter spotted on an outbound track, and the bill of lading was delivered to a Mr. Phipps, receiving agent for the Railroad. It was Phipps' job to see that all outbound cars were properly marked, that the proper shipping name was contained in the bill of lading and that the car was in condition for shipment. This car was merely tagged for direction.

On the evening of August 22, 1951, the flat car, containing the ice plant, was included as the tenth car of the Railroad's train which proceeded toward its destination, Seattle, Washington. About 83 miles north of Ogden, Utah, and in Idaho, about 1 mile south of Swan Lake, a journal box on the flat car caught fire. The train was brought to a stop at the station in Swan Lake where the brakeman attempted, unsuccessfully, to pull the packing from the "hot box." The train, thereafter, was cut behind the flat car in question, the front section moving on to a passing track and from there to an elevated track. The brakeman cut off the flat car and successfully pulled the packing and thought he had extinguished the fire.

The front section, less the flat car, then returned to pick up the rear section of the train. While returning, the brakeman noticed something still aglow on the abandoned car. Upon inspection a fire was found to be burning in the space between the car flooring and the lading near the location of the journal box, previously on fire. The engine then returned to the passing track, adjacent to the flat car which was on the elevated track, and an attempt was made to extinguish the fire. From such position, however, the crew was unable to reach the fire with the engine hose. The engine, therefore, moved to the elevated track, picked up the burning car, brought it back and cut it out on the passing track. The engine then returned to the elevated track so as to fight the fire from that angle. For the ensuing hour, the crew fought the fire but with no success. From the manner in which the fire reacted to the water applied, the crewmen should have known that they were dealing with a grease fire; but only water was used, since neither the train nor the Swan Lake station had any equipment to cope with a grease fire.

The burning car was later removed to the main line and placed beneath the water tower. Meanwhile Railroad employees called the town of Downey, asking assistance of their fire department. The telephone operator called Marshall, a deputy sheriff, to take word to the train that the Downey fire department, as previously requested, would be unable to assist in extinguishing the blaze. Marshall arrived at the scene with the message and, thereafter, at the request of the crew, assisted in fighting the fire. At no time was he informed of the true contents of the car, but rather was told that the lading was machinery. While Marshall assisted in fighting the fire, a tank of compressed gas exploded causing serious injury to him and others.

We turn first to the question as to the applicable law. As to the Railroad, jurisdiction is based on diversity of citizenship. The district court sat in Idaho. There the accident happened. Idaho law applies,^2a since the district court is in substance "another court of the State," Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079.

As to the United States jurisdiction is based on the Tort Claims Act, 28 U.S.C.A. § 1346(b) providing for liability of the United States "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Emphasis supplied. The negligence of the United States occurred in Utah and the negligent condition created, continued into Idaho where the explosion occurred. The omission to use care occurred in Idaho as well as Utah. Under the Tort Claims Act, the language quoted means the place where the negligence, either of act or omission, became operative, directly causing the injury and not places where the negligence existed but was then inoperative. Therefore Idaho law would determine whether liability exists as to the United States. Air Transport Associates v. United States, 9 Cir., 1955, 221 F.2d 467, 471. See White v. United States, 9 Cir., 1951, 193 F.2d 505, 507.

Negligence is ordinarily a question of fact to be resolved by the trier of fact. Ford v. Connell, 1949, 69 Idaho 183, 204 P.2d 1019; Clark v. Chrishop, 1952, 72 Idaho 340, 241 P.2d 171; Andruss v. Nieto, 9 Cir., 1940, 112 F.2d 250; United States v. De Back, 9 Cir., 1941, 118 F.2d 208; Corrigan v. San Marcos Hotel Co., 9 Cir., 1950, 182 F.2d 719. It is only where the facts are undisputed and where but one reasonable conclusion can be drawn therefrom that negligence becomes a question of law. Ford v. Connell, supra; Stowers v. Union Pacific R. Co., 1951, 72 Idaho 87, 237 P.2d 1041. If the finding of negligence is supported by substantial evidence considered in the light most favorable to the prevailing party, then it should be sustained. Paramount Pest Control Service v. Brewer, 9 Cir., 1949, 177 F.2d 564; United States v. Fotopulos, 9 Cir., 1950, 180 F.2d 631; Pacific American Fisheries v. Hoof, 9 Cir., 1923, 291 F. 306; Sapp v. Gardner, 9 Cir., 1944, 143 F.2d 423.

The Negligence of the United States.

The trial court found the United States negligent (1) in failing to mark and label the cargo as required under Secs. 73.400, 73.401, 73.402 and 73.404 of 49 CFR; and (2) in failing to describe, in the shipping order or bill of lading, the articles shipped, by the name anhydrous ammonia, as set forth in Sec. 72.5 of the ICC regulations as required under Sec. 73.427, 49 CFR.

We need not rest our decision alone on the alleged negligence in failing to mark and label the cargo, for we find other negligence in the record as discussed hereafter. The regulations concerning marking and labeling the cargo and exemptions therefrom are complex and confusing.³ However, an expert witness, Hardy, an inspector for the Bureau of Explosives⁴ testified the green labels should have been on the outside of the boxes containing the anhydrous ammonia.

As to the second finding of negligence against the United States in failing to describe the ammonia in the shipping order, the United States contends that the regulations do not require the designation of this cargo in any other manner than was described. The United States argues that the description in the bill of lading, "12 Bx. Machinery NOIBN (ice plant)," was proper in that it was a description of the lading in its original terminology and generic sense. The cases upon which the government relies in support of its proposition involve descriptions for rate purposes and are not applicable to the instant case.

The...