91 P. 650 | Cal. | 1907
Lead Opinion
A rehearing was granted in this case, after decision in Department, principally because of the complaint of plaintiff that no reason had been assigned for the reversal as to the defendants Nelson and Waters, employees of the principal defendant and fellow-servants of the plaintiff. Upon the reargument, plaintiff's counsel, while urging that the judgments and orders should be affirmed as to the railroad company, stipulated that in the event of reversal as to it, the judgments and orders should also be reversed as to the other defendants. We are satisfied that this course should be adopted.
On further consideration, we see no reason to modify the views expressed in the Department opinion as to certain instructions given to the jury at the request of the plaintiff, and on account of which the reversal was ordered.
Learned counsel for defendant railroad company earnestly urge that the Department opinion be modified in certain particulars. Much of what is said by counsel in this behalf is due, we cannot but feel, to a misconception of the opinion.
Certainly that opinion cannot be construed as declaring that the proximate cause of the accident was the non-adjustment of the brake. The assumption to this effect, of which defendant complains, was expressly limited in the opinion to the discussion of the question as to the alleged negligence of the defendant in the matter of the inspection of the brake, and the instruction given to the jury in that connection, and on account of which the reversal was ordered. It is declared, in effect, over and over again in the opinion that the question as to the proximate cause of the accident was in this case one for the jury. Unless the jury can find upon sufficient evidence that the railroad company was negligent in the matter of the inspection of the brake, and that this negligence contributed directly to plaintiff's injury, there can of course be no recovery by plaintiff. If the accident was wholly due to the negligence of a fellow-servant of plaintiff, or disobedience by him of a reasonable rule enacted for his guidance in the operation of the car, either as to the making of a flying switch at all, or examining the brakes before making the same, there can be no recovery, even though the defendant had itself been negligent. (Kevern v. Pro. etc. Co.,
The question as to whether or not the condition of slack in the brake was a mere matter of detail in the operation of the car, the discovery and remedying of which was a part of the regular operation of the car by train hands or switching crew, was discussed in the former opinion in the light of the evidence contained in the record. We are satisfied with the views expressed in the opinion in regard to that question, as applied to the case shown by such record, and see no occasion to add thereto.
The portion of the former opinion reading as follows: "If at the time when an inspection was required of the railroad company in the exercise of reasonable care, by reason of the negligent failure to inspect the brakes at all, or a negligent inspection, the defect remained undiscovered and caused injury, the defendant would be liable for injuries proximately caused thereby, notwithstanding a violation of this rule by Waters, even though had the rule been observed the defect would have been discovered," should be stricken out, together with the words "on the other hand" immediately succeeding.
With this exception the Department opinion is adopted as the opinion of the court in Bank, supplemented by what we have heretofore said.
The judgment, the modified judgment, and the orders denying a new trial are reversed and the cause remanded. *789
Shaw, J., Sloss, J., Henshaw, J., and Lorigan, J., concurred.
The following is the opinion of Department One above referred to rendered on March 14, 1907: —
Addendum
This is an action for damages for personal injuries alleged to have been suffered through the negligence of the defendants. Plaintiff was given a verdict against all the defendants for the sum of fifty thousand dollars, on which judgment was entered. On motion for a new trial, the trial court required plaintiff to remit ten thousand dollars thereof, as a condition precedent to the denial of the motion. This plaintiff did, and the motion was denied and the judgment modified accordingly. Defendants appeal from the judgment, the modified judgment, and from the orders denying the motion for a new trial.
The defendant Southern Pacific Company, which will hereafter be designated herein as the defendant, is a railroad corporation, owning and operating a railroad in this and other states. Plaintiff was a car-repairer in its employ. At the time of the accident he was, as such car-repairer, working under a car that was standing on what is known as the "cripple track" in defendant's yard at San Luis Obispo, about a quarter of a mile thereon from its junction with the main track. This track was so designated because it was the place where cars were kept while waiting or undergoing repairs. It becoming necessary to run another car in the yard a portion of the way down the cripple track from the main line, where it was to be unloaded, a switching crew, including defendants Nelson and Waters, took the car, attached to an engine, up the main line, and then switched it onto the cripple track by means of what is called a flying switch. The car passed to the cripple track, going at the rate of six to eight miles an hour. The cripple track from the main line was sufficiently down-grade to require efficient brakes to stop the car before it reached the place where plaintiff was working. Defendant Waters was on the moving car, charged with the management thereof, and at a point about a thousand feet from the car under which plaintiff was working first commenced to apply the brake. He at once discovered that the brake had no effect on the car, and, climbing down, endeavored in other ways to *790 obstruct its movement, but without effect. The car continued to move until it collided with the car under which plaintiff was working, causing that car to run over plaintiff's legs, injuring them to a degree requiring amputation.
Examination subsequently made of the car so switched to the cripple track showed that the reason why the brake did not hold the car was that it had not been adjusted for some time and had become too slack in parts, the result being that as to some of the wheels the brake-shoes would not reach and hold. To remedy this defect all that was essential was to take up the surplus slack, which could be done by shifting a key-bolt in a lever from one hole to another. This was a comparatively simple thing to do, requiring the use only of a hammer and chisel, and occupied only fifteen minutes in this case. This was apparently the only defect in the brake. Plaintiff's claim is that the injury was caused by this defective brake, and that defendant was negligent in not having discovered and remedied the defect.
There was a rule of defendant for the government of its employees which provided that running or flying switches must not be made except where it would cause great delay to do the work in any other manner, and that "whenever they are made the train must first be stopped and before the engine is again started the switch and also the brakes on the car to be set out must be tested and great care used." This rule, so far as it required the testing of the brakes, was entirely ignored by Waters and the remainder of the switching crew on the occasion in question. It is undisputed that no test of the brake was made by the crew before throwing the car onto the cripple track, and that the brake was in no way examined or touched until Waters attempted to use it as heretofore described. The evidence was such that we cannot say that it was not sufficient to sustain a conclusion that if the rule had been observed the defect would have been apparent and the accident avoided.
We may assume for the purposes of this decision that the evidence was such that it must be held that it was the personal duty of the employer to use reasonable care to ascertain and remedy such a defect as here existed, and also that there was evidence which would have sufficiently supported a finding that it failed to use such care, and that this failure was the *791
proximate cause of the accident. But assuming all this, the question as to whether defendant had so failed to exercise such care in the matter of the inspection of the brake as to make it guilty of negligence, was for the jury to determine, under proper instructions, from the circumstances of the case as shown by the evidence. It could not be liable unless it had failed to exercise such reasonable care. It appears very clear to us that in the determination of this particular question, the violation by Waters of the rule requiring the brakes to be tested before making a flying switch was an immaterial matter. [If at a time when an inspection was required of the railroad company in the exercise of reasonable care, by reason of a negligent failure to inspect the brakes at all, or a negligent inspection, the defect remained undiscovered and caused injury, the defendant would be liable for injuries proximately caused thereby, notwithstanding a violation of this rule by Waters, even though had the rule been observed the defect would have been discovered. On the other hand,]* the rule in no degree added to the liability of the defendant, so as to make it liable to an employee for the negligence of a fellow-employee violating its provisions. It did not operate to make those engaged merely in switching its agents for the inspection and discovery of defects in the cars, for whose negligence it would be responsible to other employees. That duty had been confided to regular car-inspectors, who represented their principal in that matter, and for whose negligence the defendant would be liable. The rule was simply one relative to the manner in which the switching crew should perform the work of switching, prohibiting the making of a flying switch by them without testing the brakes. The distinction between train hands required by rule of the employer to make some examination of the appliances on the cars operated by them for the ascertainment of defects preventing the proper operation thereof while in their charge and those specially charged by the employer with the regular duty of full inspection for the discovery and remedying of defects is noted in several cases cited by plaintiff, especially in the case of Eaton v. New York *792 Central etc. R.R. Co.,
As we read various instructions of the trial court, however, the question as to whether defendant had been negligent in the matter of the inspection of the brakes was made to turn upon the violation of this rule by Waters. The jury was told in instruction No. 15 that if it was the duty of Waters to test the brake before making a flying switch, and he negligently omitted to so do, the negligence of Waters was the negligence of the railroad company. In instruction No. 17 it was substantially said to the jury that if the brake was defective or insufficient by reason of slack, and Waters negligently omitted to inspect said brake, and by reason of such negligence on his part the car was allowed to run on to the cripple track *793 and collide with the car under which plaintiff was working, inflicting the injury upon him, the verdict must be for the plaintiff and against the defendant, if plaintiff himself was free from fault. Instruction 18 was as follows: "If you believe from the evidence that Waters negligently omitted to test the brakes of the loaded car in his charge on the 16th day of December, 1901, and if you believe that it became or was his duty to test said brakes before or at the time he made a flying switch, if he made such flying switch, then, I charge, that his negligence is the negligence of the defendant corporation, and if by reason of his negligence the car in his charge collided with the car under which Fogarty was working then your verdict must be in favor of the plaintiff and against the defendant corporation for an amount not exceeding the amount prayed for in plaintiff's complaint, if you further believe from the evidence that the plaintiff himself was free from fault." The effect of these instructions plainly was to render Waters, solely by reason of this rule, the vice-principal or personal agent of the defendant for the inspection of the car, and to make the violation of the rule by him negligence on the part of the defendant. By them the jury was clearly instructed that if Waters had violated the rule, which concededly he had done, his violation thereof was negligence on the part of defendant, and if the injuries to plaintiff were caused by this violation of the rule, the verdict must be for plaintiff. We can conceive of no sound theory upon which these instructions can be upheld. Waters was not the personal representative of the defendant in this matter, and his failure to observe the rule enacted by the defendant for its own protection, and the protection of Waters himself and his fellow-employees, was not negligence on the part of the railroad company. As we have intimated, there may have been sufficient evidence to warrant the jury in finding that the defendant had been negligent in the matter of inspecting this car, and that the accident was caused thereby, but such negligence is not shown as a matter of law, and we cannot say, in the face of these instructions, that the jury so found. They may have concluded simply that the failure of Waters to observe the rule caused the accident, and that the only negligence on the part of defendant was this violation of the rule by Waters, *794 for so concluding their verdict would have been warranted by the instructions. It does not assist that the trial court in two other instructions charged the jury in direct conflict with the instructions above referred to, and in terms too favorable to defendant. The conflicting statements of the court in this regard were each equally positive and plain, and no one can tell which the jury followed.
It follows that a reversal must be had on account of these instructions.
One or two other matters should be discussed for the purposes of a new trial.
Much of the argument of counsel has been devoted to the contention of defendant that the condition of slack in the brake was a mere matter of detail in the operation of the car, not involving any breach of original duty on the part of the employer, and the remedying of which was a part of the proper operation of the car by train hands or switching crew. By this contention it is sought to bring the case within the doctrine ofHelling v. Schindler,
It cannot be said that the evidence showed plaintiff guilty of contributory negligence as a matter of law. Defendant does not point out specifically wherein the instruction of the court upon this subject was erroneous. If plaintiff was negligent in the matter of not indicating his presence under the car by flags, and his negligence directly contributed to his injuries, there can of course be no recovery.
Other points made by defendant will probably not arise on a new trial, and need not here be considered.
The judgment, the modified judgment, and the orders denying a new trial are reversed and the cause remanded.
Shaw, J., and Sloss, J., concurred.