THOMAS FOGARTY, Rеspondent, v. SOUTHERN PACIFIC COMPANY et al., Appellants.
L. A. No. 1712
In Bank. August 23, 1907.
August 23, 1907.
151 Cal. 785
In the statement in the opinion suggesting that the record sufficiently shows the taking of an exception to the instructions, I understand the chief justice to be stating his personal opinion and not that of the court.
Sloss, J., and Angellotti, J., concurred.
THOMAS FOGARTY, Respondent, v. SOUTHERN PACIFIC COMPANY et al., Appellants.
NEGLIGENCE — RAILROAD — RULE AS TO “FLYING SWITCH” — FELLOW-EMPLOYEE.—A rule of a railroad company for the government of its employees, which provided that running or flying switches must not be made excеpt 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,” in no degree adds to the liability of the company so as to make it liable to an employee for the negligence of a fellow-employee who was a member of the train crew making the flying switch, and who violated its provisions. Such rule simply relates to the manner in which the switching crew should perform the work of switching, and did not make those engaged merely in that work the agents of the company for the inspection and discovery of defects in the cars, for whose negligence it would be responsible to other employees; and a negligent failure on the part of one of the switching crew to comply with the rule is, as respects other employees, only the negligence of the employee, and not that of the company.
ID.—INJURY TO CAR-REPAIRER—INSTRUCTIONS.—In an action by a car-repairer of the railroad company, who was injured as the result of a “flying switch,” made with a car having a defective brake, instructions which in effect left the question as to whether the company had been negligent in the matter of the inspection of the brakes to turn upon the violation of such rule by a member of the switching crew are erroneous, and necessitate a reversal of a judgment for the plaintiff. This result follows, although other instructions charged the jury directly to the contrary, and in terms too favorable to the defendant.
ID.—DUTY TO INSPECT CARS—REASONABLE CARE—DEFECTIVE BRAKE.—It is a primary and non-assignable duty of a railroad company to its employees to use reasonable care to discover and remedy any defect in a car as a completed appliance, and it is responsible to any employee injured by reason of its failure so to do, except to an employee whose duty it is to discover the defect, and whose negligent failure to do so contributes to his own injury. This requirement includes any defect in the adjustment of the brakes which renders them wholly ineffectual, however arising, just as fully as any other defect. The company cannot escape responsibility in this matter by any delegation of the duty.
ID.—REASONABLENESS OF CARE FOR JURY.—In an action by a car-repairer of a railroad company, who while working under a stationary car was injured by another car while making a “flying switch,” and which was not subject to control by reason of a defective brake, the question of the company’s negligence depends upon its failure to use reasonable сare,—that is, such care as was under all the circumstances reasonably consistent with a due regard for the safety of its employees,—in inspecting the switched car for the discovery and remedying of such defects as would render that car an unsafe appliance. In the determination of the question of fact as to whether reasonable care was used in the matter of inspection, it is proper to take into consideration with other circumstances the fact that the car was not then being used for transportation purposes, but was being temporarily kept for unloading in the railroad yard, and also that there was a rule prohibiting the company’s employees from making a flying switch without first testing its brakes. In the present case the question of the proximate cause of the accident and of the care exercised by the defendant was one of fact for the jury.
APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order refusing a new trial. N. P. Unangst, Judge.
The facts are stated in the opinion of the court.
William F. Herrin, P. F. Dunne, and W. S. Spencer, for Appellants.
Sullivan & Sullivan, and Theo. J. Roche, for Respondent.
On further consideration, we see no reason to modify the views expressed in the Department opinion as to сertain 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, wаs 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 nеgligence 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., 70 Cal. 394, [11 Pac. 740]; Vizelich v. Southern Pacific Co., 126 Cal. 587, [59 Pac. 129]; Luman v. Golden etc. Co., 140 Cal. 707, [74 Pac. 307].) The evidence in the record before us cannot be held, as a matter of law, to show what was the prоximate cause, and hence the question is necessarily one for the trial jury. It should also be said in this connection that the showing in the record now before us, as to whether the conditions were such as to make the rule prohibiting a flying switch “except where it would cause great delay to do the work in any other manner” applicable is extremely weak, if, indeed, there can be said to be any showing at all on the subject. It was because of this that the matter was not referred to in the former opinion. If defendant relies on a violation of this portion of the rule, it should make it appear that the work could have been otherwise done without what would have been “great delay” under the existing circumstances. Five or ten minutes might have constituted such a great delay under certain circumstances.
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 satisfiеd 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.
The following is the opinion of Department One above referred to rendered on March 14, 1907:—
ANGELLOTTI, J.—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 Pacifiс 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 necessаry 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
Examination subsequently made of the car so switched tо 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 defeсt 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 thе 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 оf 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
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 do so, 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
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 рart 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 of Helling v. Schindler, 145 Cal. 303, [78 Pac. 710], where the rule that the employer is not liable for defects arising in the daily use of an appliance which are not of a permanent character and do not require the help of skillful mechanics to repair, but which may easily be, and usually are, repaired by the workmen, and to repair which proper and suitable materials are supplied, was applied in the case of an injury to an operative on a planing-machine, the knife of which had become dull and the belt slack by use therein by him and others using the machine with him. (See, also, Towne v. Electric Co., 146 Cal. 766, [81 Pac. 124]; Leishman v. Union Iron Works, 148 Cal. 274, [113 Am. St. Rep. 243, 83 Pac. 30].) It was there said that this rule is, “at least so far as those engaged in the common use of an appliance are concerned,” sustained by the great weight of authority. This rule is a qualification of the general rule relative to the duty of the employer to furnish an appliance that is reasonably safe, and to use reasonable care to keep the same in proper repair, and, as stated in Helling v. Schindler, 145 Cal. 303, [78 Pac. 710], it “rеlates only to such slight defects attendant upon the operation of machinery as from their nature require remedying at the hands of the operators themselves and as a part of the proper operation
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.