247 P. 911 | Cal. | 1926
This appeal is from a judgment of the superior court in and for the city and county of San Francisco in favor of the plaintiff as administratrix of the estate of Walter W. Mappin, deceased, against the defendant for the sum of twenty-five thousand dollars damages arising out of injuries sustained by, and the death therefrom of, said W.W. Mappin, her husband, while an employee of said defendant and through its alleged negligence. The action was commenced and prosecuted in said court under the provisions of the so-called "Federal Employers' Liability Act," *735 which act provides for the enforcement in the state courts of the liabilities of common carriers for injuries suffered by their employees while employed by such carriers in interstate commerce. The primary question presented upon this appeal is as to whether the evidence educed at the trial of the cause was sufficient to uphold the implied finding of the jury that the deceased was employed by the defendant in interstate commerce at the time he received the injuries which resulted in his death. The secondary question, assuming the first above inquiry to be answered affirmatively, is as to whether the plaintiff had succeeded in showing a case of actionable negligence on the part of the defendant proximately causing the death of the deceased. There are certain undisputed facts presented by the pleadings and evidence in the case which have reference to the primary inquiry above referred to. These are as follows: The defendant Atchison, Topeka and Santa Fe Railway Company is a corporation and a common carrier engaged in both interstate and intrastate commerce within the state of California; and as to the former beyond the boundaries of said state. The decedent Walter W. Mappin was on November 1, 1923, and at the time of his aforesaid injuries employed by the said defendant in its railroad freight-yards in the city of San Francisco in the capacity of an engine foreman in charge of a switch crew in the main switchyard of the defendant which is fully equipped with round-house, track scales, storage facilities, etc., and which adjoins its freight-house, where all freight shipped from and consigned to San Francisco through its facilities is handled. There are shifts of working crews in this yard, each under its own foreman, each working eight hours a day, and handling in all an average of one hundred cars daily. The hours of work of the particular crew of which the deceased was foreman were from 11 o'clock at night until 7 o'clock the next morning. It was the duty of this crew to take up the work of the crew which had preceded it with respect to the receipt and disposal of cars; and upon this particular occasion it became the duty of Mappin's crew to deal with an assemblage of thirteen empty cars which the former switching crew had placed upon "Track 9" and which were to be placed in their designated position for loading according *736 to the requirements of the following day. These cars had already been selected by the yardmaster from the repair track and various other tracks with reference to their adaptability for such requirements. Some of these empty cars were to be weighed and the first duty apparently of this switching crew was to have this line of cars pulled over No. 9 track and past No. 9 switch for the purpose of backing them down to the scale track where those of them requiring weighing were to be weighed, upon the conclusion of which the several cars were to be switched to their respective places as indicated upon said list. There were in this aggregation of thirteen cars which were thus to be handled that night ten cars which at some time prior thereto had arrived in San Francisco upon the defendant's railway lines carrying merchandise originating as to its transportation in states other than California, while the remainder of said list of cars had come in with loads originating within the state of California. Of the former ten cars three were cars belonging to railroad companies which had no tracks in California. These were a C.B. Q. car No. 130238, which had been received by the defendant at Denver, Colorado, loaded with interstate freight destined for California points; N.Y.C. car No. 336914, which had been received by the defendant at Streator, Illinois, similarly loaded; R.I. car No. 42217, which had been received by the defendant at Amarillo, Texas, also similarly loaded. Each of these cars had been unloaded prior to November 1, 1923, and had been inspected, cleaned, and repaired so that they were ready for use. These three last-named cars had been given specific switching destinations, viz.: C.B. Q. car No. 130238 was designated to load lumber, Berth 2; N.Y.C. car No. 336914 was to be spotted for derrick. This designation was explained by the testimony of the yard foreman immediately preceding Mappin on that evening to the effect that this car was to go to the "derrick" in connection with another car, "Santa Fe No. 62219," which was to receive there a specific load; and there was some further evidence that N YC. car No. 336914 thus ordered spotted at the derrick left San Francisco on November 3, 1923, loaded with wrought iron pipe consigned to Las Vegas, New Mexico. R.I. car No. 42217 was designated to be spotted at "Block No. 6." The term *737 "Block" indicated the place in the freight-house from which shipments of freight were to be loaded upon the cars for specific destinations, and "Block 6" was the place where freight consigned to Arizona was to be loaded on the cars which had been "spotted" at that point. There is evidence that R.I. car No. 42217, placed at that point immediately after the accident to Mappin was, on the following day, loaded at "Block 6" with freight destined for Arizona. There was also offered and received in evidence the rules of the defendant company in conformity with the like rules of the Interstate Commerce Commission to the effect that it was the duty of a railroad carrier receiving foreign cars from a forwarding railroad to return such cars when unloaded at their point of destination to the forwarding railroad at the point where the former received them. This point was designated by a card affixed to the side of the car. There was also evidence of a custom among carriers to place in such cars when thus turned homeward freight consigned to points inside or outside the state of California, provided these shipments of freight were to points of destination along the homeward route of the foreign car.
With respect to the foregoing evidence, showing what was done in the way of loading these three cars with freight for interstate shipments on the day following the injuries to Mappin, and which evidence was offered and admitted over the defendant's objection, it is urged by the appellant that the trial court was in error in the admission of such evidence. We cannot agree with this contention. In the absence of any showing of a change of purpose as to the immediate destination of these cars within the defendant's freight-yard or of any change of design that they or some of them at least should be presently loaded with freight destined for foreign points along the homeward route of the cars so to be loaded, we are of the opinion that evidence that certain of said cars were so presently loaded with such freight and at such predesignated spotting points was admissible as having an important bearing upon the question as to whether the cars had thus been definitely destined for use in interstate commerce and started on their homeward way in the course of such use prior to Mappin's injuries; and that they were engaged in such use at the time *738
the latter received such injuries. (Breske v. Minneapolis etc.Ry. Co.,
*741
[191 S.W. 243]; Breske v. Minneapolis etc. Ry.,
The appellant has also urged certain other defects in the instructions of the trial court, but as to these they consist in the main in alleged errors in respect to the matters *746 which have heretofore been considered in this opinion. The instructions of the trial court were, taken as a whole, full and fair and as to the questions of law involved require no further consideration than that which has already been given to these in this opinion.
The judgment is affirmed.
Shenk, J., Seawell, J., Curtis, J., Waste, C.J., and Finlayson, J., pro tem., concurred.
Rehearing denied.