Winegar v. Oregon Short Line R. Co.
| Decision Date | 05 May 1931 |
| Docket Number | 4941 |
| Citation | 77 Utah 594,298 P. 948 |
| Court | Utah Supreme Court |
| Parties | WINEGAR v. OREGON SHORT LINE R. CO |
Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.
Action by John E. Winegar against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals.
AFFIRMED.
Geo. H Smith, J. V. Lyle, R. B. Porter, and W. HalFarr, all of Salt Lake City, for appellant.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.
Plaintiff brought an action against defendant, under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for personal injuries alleged to have been caused by defendant's negligence. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
The plaintiff was employed as a car checker and inspector. The occasion on which he sustained the injuries of which complaint is made he was performing the duties of car checker. He was working in conjunction with three other employees, two of whom were inspectors and the other was a repair man. Their shift began at 11:30 p. m., and continued for eight hours. Each was required to carry a lantern, and the respondent was also obliged to carry a clip board by which he held his record in place. As a checker he was required to write down the name of the train; the date and exact time of its arrival, the time it was blue-flagged, the number and the kind of car being inspected, whether it was empty or loaded, and in addition thereto he wrote down whatever defects and impairments which the inspectors called out to him, one of whom was on each side of the car. If the impairments were such that it could not be repaired by them, it was noted as a "bad order." He would have to do this writing as he went along. He wrote his own explanation of the information called out to him by the inspectors. To do this it was necessary for him to have his attention on his work.
In the defendant's yard, in addition to the two through tracks, there were ten or more parallel switch tracks, branching off the main lead and running approximately north and south. The train on which the plaintiff and his associates were working on the occasion in question was an interstate train known as the Denver-Pacific. This is a fast freight, and it is designated in the evidence as a "manifest train." The "manifest trains" are given preference over the dead freight. It is required that such a train be inspected, checked, and repaired with as much rapidity as possible and sent on its course. If the cargo of any of its cars is billed to this point, that car must be transferred to its consignee without any unnecessary delay. On these manifest trains the inspection work is ordinarily done at the rate of a car per minute. The Denver-Pacific is a daily train. It comes in during the plaintiff's shift. There are four other manifest trains similar to the Denver-Pacific.
On the day of the accident, the Denver-Pacific came in on track No. 5. As soon as it was stopped, the road engine was cut off and the train blue-flagged. At night a blue lantern is used in addition to the flag. The blue light can be seen for a distance of 300 to 500 feet. When a train is blue-flagged, that is notice that there are men working around it, and it is not to be molested so long as the blue flag remains. The switchmen are notified when a train is turned over to the carmen for inspection and repairs, and of the track on which the train is placed. On this occasion the plaintiff and his crew began the inspection at the head of the train and worked north with the main lead at their back. When he was checking the third car, the switching crew shunted or kicked a cut of two empty gondola coal cars in on track No. 6 adjoining the track on which the Denver-Pacific train had been placed and on which plaintiff was at work, without giving any warning or notice of any kind to the plaintiff or the members of his crew of the approach of the cars. The plaintiff was struck by one of the cars and injured.
In the complaint it is alleged that it was the "custom, practice and usage" in the switchyard of the defendant that, whenever a crew of men were engaged in inspecting, checking, and repairing a string of cars on one of the switch tracks, no car or cars would be run in on an adjoining track without notice or warning thereof to the employees so engaged; that for a long time prior to the accident here in question the members of the switching crew had always notified and given warning to the employees so engaged of the approach of a car or cars on an adjoining track; that the plaintiff on the occasion in question relied upon such custom and practice, and especially did he rely on the fact that, if and when any cars were to be run in on a track adjoining the one on which the Denver-Pacific train had been placed for checking, inspection, and repairs, the defendant's employees whose duty it was to perform the switching operations, would know or with reasonable care should know, that the plaintiff and other employees were then engaged in checking, inspecting and repairing the cars making up the train, and that he and such other employees so engaged would be given notice and warning of the approach of such car or cars coming in on an adjoining track.
The defendant answered denying the existence of the custom, practice, or usage asserted by the plaintiff, and also pleaded contributory negligence and assumption of risk as a defense to the plaintiff's alleged cause of action.
At the conclusion of the plaintiff's case the defendant moved for a nonsuit, which motion was denied; on the submission of the cause it moved the court for a direction of a verdict in its favor. This motion was also denied. Exceptions to these rulings were duly taken, and the only errors relied on by the defendant challenge the correctness of these rulings. We observe no motion for a new trial was made.
The fundamental errors complained of by these assignments, as gathered from the defendant's brief, is that the court in each instance declined to rule that there is no evidence to show that the defendant was guilty of any negligence and that the chance of such an accident as happened is one of the risks that the plaintiff assumed by reason of his employment. Instead of that, the court submitted the case to the jury on the plaintiff's theory as alleged in his complaint. The only negligence charged is predicated on the failure to give the usual and ordinary notice required by the switching practice and custom followed in the defendant's yard as pleaded by the plaintiff. There is no suggestion that any such notice was given; therefore the existence of such a custom or practice was the controlling question of fact at the trial. On this appeal, therefore, the sole question is whether the evidence, in respect of such custom and practice, resolved most favorably to the plaintiff, is sufficient to sustain the verdict.
The plaintiff himself, who had been employed in defendant's service for five years, the two years next preceding the accident, was a car inspector or checker, and Frank Redford, Jr., a man of family, and who up to the time of the injury had been in the defendant's service for eighteen months as a car checker, and at the time of the trial was still so employed, both testified that such a practice existed in the defendant's yard. Their testimony was to the effect that, whenever the members of the inspection crew were working in close proximity to the main lead, it was the custom for some member of the switching crew to give them some warning when cars were being kicked or run in on an adjoining switch track. This warning was given by shouting or by whistling. The plaintiff, when asked how the switchman would give the warning, testified: "Various ways sometimes whistle to you, sometimes call out 'Look out, cars coming in on No. 6,' or call our attention in various ways--any way to call our attention." These witnesses explained in their testimony, and this evidence finds some support in the testimony of some of the defendant's witnesses, that the switching crew worked along the main lead practically all the time; that the noise...
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