21 Cal. 2d 308 | Cal. | 1942
— Plaintiff, an employee of the defendant Railway Company, brought this action under the Federal Employers' Liability Act (45 U.S.C.A. 51) and the Safety Appliance Act (45 U.S.C.A. 11), to recover damages for personal injuries suffered by him as the result of an alleged inefficient hand brake on a car operated by defendant.
Plaintiff was employed by defendant as a switchman and was injured while engaged in the performance of his duties at about 5:30 a. m., on December 14, 1938; it was dark and there had been a light rain. Defendant, a California railway corporation, is a common carrier by railroad handling both interstate and intrastate shipments, its business consisting chiefly
The rules pertinent to. this case, with respect to the liability of carriers falling within the terms of the Federal Employers ’ Liability Act (supra) and the Safety Appliance Act (supra) are well established. The Safety Appliance Act requires that cars be equipped with “efficient hand brakes.” (45 U.S.C.A., § 11.) The defenses of assumption of risk and contributory negligence are unavailable where that requirement has not been met. (45 U.S.C.A., §§ 7, 53, 54.) The carrier’s liability for injuries proximately caused by a violation of that requirement is absolute and is not founded upon negligence of the carrier. (45 U.S.C.A., § 11; Brady v. Terminal R. R. Assn., 303 U.S. 10 [58 S.Ct. 426, 82 L.Ed. 614].)
The sole issues are therefore whether the hand brake ivas efficient, and if not, whether its inefficiency was the proximate cause of the injuries.
.It is asserted that there is no substantial evidence that the hand brake was not efficient, and therefore there was no violation of the Safety Appliance Act; that the only credible evidence shows that it was efficient and that plaintiff’s - fall was caused by his slipping. Plaintiff testified that he set the ■ brake tightly in the customary and usual manner and the .pawl was firmly set in the ratchet preventing the shaft and top wheel from revolving and releasing the brake. It held until he reached for the hand rail with his left hand, his right hand resting on the top wheel, then it let go. The top wheel spun around throwing him from the car. The car was moving during that time. Thus, the situation was that the hand brake failed to properly operate, failed to hold. From those circumstances alone the jury was justified in inferring that the hand brake was not efficient. Under the Safety Appliance Act, the particular defect in the appliance causing the injury
In connection with the foregoing rule defendant’s contention that the evidence is insufficient to fasten liability on it, in that it does not show that the brake was properly operated by plaintiff, we are satisfied that the evidence was sufficient. Plaintiff testified: “Q. Just go ahead and tell us now what the customary and usual and normal manner of setting that brake is. A. Well, if you set it with your hands, that is the way I did it — is that all right ? I set it from the right hand side, to give me more power with my hands. I swung my body with my arms after I got it. MB. MEYEBS: Q. That is the manner in which you set this brake? A. Yes, sir.” He also testified that the brake was tightly set and the pawl firmly enmeshed in the ratchet wheel. Defendant’s evidence to the contrary merely created a conflict.
In addition to the foregoing, plaintiff produced the witness, Decker, who had had 22 years’ experience as a brakeman and switchman. He stated that he examined the brake on the tanker about 3 hours after the accident and found a one-half to an inch slack in the brake staff up and down, a one-half to five-eighths inch in the pawl laterally, and one-half inch vertically; that with a car moving at the speed just before stopping with that amount of play, the pawl would jump out of the ratchet from the vibration of the brake shoes being applied to the wheels.
In opposition to the foregoing evidence defendant refers to its evidence showing that the brake was inspected three
Defendant asserts that plaintiff’s testimony at the trial was inherently incredible and that the fall resulted from plaintiff’s slipping, because plaintiff’s witness Everly, an employee of defendant, testified on cross-examination that after the accident and while at the hospital plaintiff told him in response to a query of how it happened: “He said he was setting the brake and he slipped and fell. ’ ’ The ease was reopened on plaintiff’s motion and he denied that he made any such statement. In any event it is not necessarily inconsistent with his testimony that he was thrown from the tanker by the release of the brake. It may well have been that the release of the brake and spinning of the wheel caused him to slip and fall. Furthermore, Everly, although a witness for plaintiff, was an employee of defendant and the testimony was elicited on cross-examination by defendant. Everly's testimony was also weakened on plaintiff’s redirect examination of him where he stated he did not remember- whether plaintiff said he slipped or the brake slipped. Although he. later on
Defendant questions the credibility of plaintiff’s witness, Decker, chiefly because he admitted that the nut on top of the pawl was not loose and that therefore there could not have been sufficient play in the pawl to permit it to slip out of the cogs of the ratchet. But his ultimate testimony was as above seen and he found play in between the pin holding the ratchet and the hole through which it passed. Those questions were of fact for the jury. (See Karberg v. Southern Pacific Co., supra.)
Defendant urges that plaintiff’s evidence presented two sets of circumstances, each giving rise to inconsistent inferences and that under the rule in the federal courts, under those circumstances, the judgment must be for defendant. But in addition to the inference arising from the inefficient operation of the brake heretofore discussed, we have the testimony of Decker above-mentioned. Furthermore, plaintiff’s testimony that when he set the brake it slowed the tanker and stopped it on an up-grade does not necessarily give rise to the inference that the brake was efficient.
Although it apparently was working when plaintiff applied it and set it and had effectively stopped the movement of the tanker, it evidently must not have been in good condition because it thereafter released and spun around. It may well have been that it was efficient to the point of temporarily holding, but not for a sufficient time. Plaintiff’s testimony, as we have seen, directly refuted defendant’s assumption that he slipped and fell. The principles with respect to inferences, giving consideration to the federal rule, in cases under the Federal Employers’ Liability Act, was recently stated by this court in Showalter v. Western Pacific R. R. Co., 16 Cal.2d 460, 476 [106 P.2d 895], as follows:
“Although the defendant in this ease offered no evidence it contends that that produced by the plaintiff showed no negligence on the part of the defendant, but, on the contrary, indicated that plaintiff fell from the cars while engaged in a normal switching operation.
“A contention much the same was made in the recent sim
Defendant places especial reliance upon Grand Trunk Western R. Co. v. Holstein, 67 F.2d 780, but there it did not appear that the car was still moving when the brake released. It had been brought to a stop and the brake had been satisfactory in bringing it to a stop. The brake apparently released after the car was stopped, thus it was equally infer-able that the brake was efficient as that it was not. In the instant case the tanker was still moving when the brake released. Thus, although the brake may have set properly and an inference would arise that it was efficient in slowing the movement of the car, it does not necessarily follow that it would hold, when the car was continuing to move. The inference would be of its inefficiency in holding after once set where the car continued to move. Furthermore, there is evidence here of the looseness of the pawl on its pivot and the other evidence of witness, Decker, which were not present in the Holstein case. A recent federal case is more in point. In Didinger v. Pennsylvania R. R. Co., supra, it is said at page 798:
“There are two recognized methods of showing the inefficiency of hand brake equipment. Evidence may be adduced to establish some particular defect, or the same inefficiency may be established by showing a failure to function, when operated with due care, in the normal, natural, and usual manner. (Altman v. Atlantic Coast L. R. Co., [C.C.A. 5] 18 F.2d 405.) The plaintiff adopted the latter method of proof. By the opening statement he offered to show by evidence that, in a switching operation, he was required to firmly
“Assuming the proper setting of the brake, the fact that it did not hold demonstrates its inefficiency. As said in Philadelphia & R. Ry. Co. v. Auchenbach, (C.C.A. 3); 16 F. 2d 550, 552: ‘ The test of the observance of this duty [under the Safety Appliance Act] is the performance of the appliances,’ and it was not necessary for the plaintiff to show whether this failure to function was due to the fact that the ratchet broke loose from the brake staff, that the ratchet teeth were worn, that the dog or its rocker pivot broke, that there was too much vertical play between dog and ratchet (as in Lehigh Valley R. Co. v. Sowell, supra), or any other precise defect (Minneapolis & St. L. R. Co. v. Gotschall, 244 U.S. 66 [37 S.Ct. 598, 61 L.Ed. 995]). If the brake was properly set, as asserted, some defect must have been latent in it. Otherwise it would have held. Although the existence of negligence, in the sense of a failure to use care, is immaterial, the principle of res ipso loquitur applies. The failure to hold under normal operation speaks for itself.” Defendant attempts to distinguish that case on the ground that there the brake did not hold the car after it was set. But it was stated therein that the pawl went into the ratchet and he heard it click and he “seeing that the brake held after it was set” he placed his hand on it. No beneficial purpose may be accomplished by a discussion of all the cases cited by counsel. Each case must depend on its particular facts, and we are convinced of the sufficiency of the evidence in this case.
It is claimed that the case is not within the pur
Defendant argues that there is a presumption that defendant was engaged in intrastate commerce, citing Johnson v. Southern Pacific Co., 199 Cal. 126 [248 P. 501, 49 A.L.R. 1323], and that therefore the jury should have been permitted to decide the question and weigh the presumption. The presumption there referred to was that the carrier was engaged in intrastate commerce. In the instant case we have seen that defendant under the law was engaged in interstate commerce at the time of the accident. Under those circumstances the presumption could not have arisen. The condition upon which the presumption is said to have arisen in the Johnson case is that “in the absence of proof” defendant was presumed to have been engaged in intrastate commerce at the time of the injury.
The effect of that decision was that plaintiff had the burden of proving interstate commerce. Here, as we have seen, it is clear that defendant was so engaged. Furthermore, in the Johnson case the car involved had not yet entered interstate commerce whereas in the instant case it originated in Arizona and was in the process of reaching the Swift & Company plant in California.
Defendant refers to testimony of plaintiff that he received compensation payments and medical treatment for his injury as indicating that he was not engaged in interstate, commerce when injured. Even assuming that receipt of workmen’s compensation has a bearing upon the subject, the evidence does not necessarily show the receipt of such compensation. It consisted solely of the following: “Q. You were taken to the hospital by Mr. Addington? A. I was. Q. And you received medical care at the hospital ? A. I did. Q. And subsequent to leaving the hospital you received medical care from the doctor of the Los Angeles Junction Railroad Company? A. From Dr. Wells. Q. And you also received compensation from the Los Angeles Junction Railroad Company? A. A couple of months. Q. You received compensation up
Defendant asserts that plaintiff was in fact not an employee of defendant under the Federal Employers’ Liability Act when he was injured because in applying for employment he fraudulently represented his age to be 44 when in fact he was 63, and that the court erred in failing to give the jury instructions requested by it on the subject. Plaintiff was examined by defendant’s examining physician before he commenced work. He had been working four years for defendant when injured. Defendant’s superintendent, Hall, testified that plaintiff was an experienced man, did his work and no one ever “turned him in.” Hall referred to him as a squirrel which would imply agility. Assuming that the misrepresentation was a defense, the jury was instructed at plaintiff’s request in regard to this subject that such fraudulent misrepresentation does not prevent a recovery unless there is a causal connection between the injury and the misrepresentation. There was sufficient evidence from which the jury could have concluded, as they impliedly did, that there was no causal connection. Where employment is induced by fraudulent representations of the employee not going to the factum of the contract the employment exists although there may be ground for rescinding the contract, and recovery may be had from the employer for negligent injury to the employee at least where there is no causal connection between the injury and the misrepresentation. (See Phillips v. Southern Pacific Co., 14 Cal.App.2d 454 [58 P.2d 688]; Minneapolis, St. P. & S. Ste. M. R. Co. v. Borum, 286 U.S. 447 [52 S.Ct. 612, 76 L.Ed. 1218] ; Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585 [106 P. 284, 25 L.R.A.N.S. 707] ; Payne v. Daugherty, 283 F. 353 [136 A.L.R 1124]; Matthews v. Atchison, T. & S. F. Ry., 54 Cal.App.2d 549 [129 P.2d 435] ; Minneapolis etc., R. Co., v. Rock, 279 U.S. 410 [49 S.Ct. 363, 73 L.Ed. 766], is distinguishable in that there the employee when first applying for employment was rejected by the company’s physician because of several physical defects. He subsequently applied under a different name and in violation of the company’s rules, had another take the physical examination in his place. (See Minneapolis, St. P. & S. Ste. M. R. Co. v. Borum, supra.)
Certain jury instructions with reference to defend
Defendant complains of error in the admission of the testimony of witness, Decker, heretofore referred to and in part quoted, on the ground that it was improper opinion evidence. The evidence shows Decker to have been fully qualified by experience with brakes. His testimony was not that the brake was unsafe, thus the case of Sappenfield v. Main St. etc., R. R. C., 91 Cal. 48 [27 P. 590], cited by defendant is not controlling. It was that the play in the parts was such when he examined it that the pawl would disengage. The brake is a mechanical device, its operation somewhat complicated, and the effect upon its operation of a loose condition of its parts was properly the subject of expert testimony. (See Colwell v. St. Louis-S. F. Ry. Co., 335 Mo. 494 [73 S.W.2d 222]; Herb v. Pitcairn, supra.)
Decker testified with reference to exhibits consisting of photographs of the brake. Defendant objects to the use of those exhibits. Decker testified that those photographs portrayed the brake as he saw it shortly after the accident. His testimony was that the play in the brake parts was sufficient to permit the lifting of the pawl above the ratchet as shown in the photographs and that he had lifted it up that way when he examined it. The photograph shows a stone under the pawl holding it up. Plaintiff’s counsel stated that he placed the stone under it in order to take the picture in response to a query by defendant’s witness Forrester on cross:examination. The latter stated he would not pass on examination a brake with a pawl that could be lifted that high. We find no error or prejudice in the cross-examination or the use of the exhibits.
The damages are said to be excessive. The award was $8,000. Plaintiff’s injuries consisted of the loss of the index, ring and middle fingers of his right hand and injury to his right shoulder. He suffers pain in the finger stumps and further surgery will be necessary to eliminate the sensitive condition of the stumps. There is a permanent stiffness of the
Other errors are claimed but they are insignificant and we find no merit in them. We are satisfied from the entire record that the judgment should be affirmed.
It is so ordered.
Gibson, C. J., Shenk, J., Curtis, J., Edmonds, J., and Spence, J. pro tern., concurred.
Appellant’s petition for a rehearing was denied December 31,1942.