Potter v. Los Angeles & Salt Lake Railroad

177 P. 933 | Nev. | 1919

By the Court,

Coleman, C. J.:

Potter brought suit to recover damages for personal injury, and, judgment having been rendered against the railroad company, it has appealed.

1. A motion to dismiss the appeal has been interposed by respondent, upon the ground that, while the appeal is from the judgment, the error assigned and ruled upon is directed solely to an order made by the court sustaining a motion to strike certain affirmative matter pleaded in the answer. The motion must be denied. Section 5340 of the Revised Laws expressly provides that, upon an appeal from a judgment, the court may review intermediate orders.

The complaint contains two counts, both of which allege the corporate capacity of the company; that it was on June 12, 1917, a common carrier by railroad, engaged in interstate commerce, in that it was transporting passengers and freight in and between the States of Nevada, California, and Utah; that said company, in the conduct of its business, kept and maintained shops, yards, and a division point at Las Vegas, Nevada; that on the day mentioned plaintiff was in the employ of the company as a brakeman, engaged in the switching of cars which were being used in interstate commerce in the yards of said company at the division point; that at the time of the alleged injury defendant was operating the cars at an excessive rate of speed; and that while thus engaged in switching cars plaintiff was injured through the negligence of the company in not having equipped and maintained in good working order automatic couplers upon the cars so being used in interstate commerce, which were being switched in said yards.

The first count pleaded the Nevada workmen’s compensation act (Stats. 1913, c. Ill), and that defendant had rejected the same. The second count was substantially the same as the first, but, instead of pleading the aforesaid act, pleaded the federal safety appliance act (Act March 2,1893, c. 196, 27 Stat. 531; U. S. Comp. St. 8605-8612), and the federal employers’ liability act (Act Cong. April 22,1908, c. 149, 35 Stat. 65; U. S. Comp. St. 8657-8665).

The defendant company filed an answer in which it denied the acts of negligence alleged in both counts of the complaint, and also set up an affirmative defense of contributory negligence on the part of the plaintiff in bar to the action, and pleaded that plaintiff had assumed the risk.

At the time of the trial plaintiff withdrew his first cause of action.

The error assigned on this appeal pertains to an order sustaining a motion made by counsel for plaintiff to strike from the answer the affirmative defenses of contributory negligence and assumed risk. The motion to strike these defenses was based upon the ground that, when a cause of action pleaded in a complaint is founded upon a violation of the federal statutes, contributory-negligence and assumed risk are not defenses and have no proper place in the answer, and counsel for respondent contend that no error was committed by the court in striking the said defenses.

Section 3 of the federal employers’ liability act reads:

“In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” U. S. Comp. St. 1916, vol. 8, p. 9423. .

Section 4 of said act provides:

“In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” U. S. Comp. St. 1916, vol. 8, p. 9427.

Counsel for appellant concede the correctness of the general contention made by counsel for respondent as to. the rule of law, but insist that there is nothing in the act which prohibits the making of the defenses of contributory negligence and assumed risk when the complaint sets up, as it is asserted is the fact in the case at bar, not only a violation of the federal act, but also alleges the negligence of the company in operating the cars mentioned in the complaint at an excessive rate of speed, since it is no violation of a federal statute to operate trains or cars at an excessive rate of speed.

2, 3. While we are inclined to the view that the general principle of law contended for by counsel for appellant is correct, we do not think that the complaint in question brings the case within the rule. It is clear from the complaint that plaintiff, as a basis of recovery, relies upon the negligence of the appellant in having a defective automatic coupler upon the car which was being-switched. The allegation as to the speed of the car was, we take it, for the purpose of showing the necessity for plaintiff’s jumping from a car after it had become uncoupled, and was not pleaded as a cause of action. Conceding, for the purpose of the case, that the plaintiff was guilty of contributory negligence in jumping from the car, it was only one of the concurring causes of plaintiff’s inj ury, for the proximate cause was the defective coupler. But for the defective coupler, the cars would have been under perfect control; they would not have run at an excessive rate of speed, and there would have been no injury. We think the language of the court in Otos v. Great Northern Ry. Co., 128 Minn. 283, 150 N. W. 922, is squarely in point. The court said:

“Defendant contends that the proximate cause of plaintiff’s injury was, not the defective condition of the coupling, but his violation of a rule of the employer forbidding employees going between moving cars. It appears that there was such a rule. There is evidence that in this yard it had, with the knowledge of the yardmaster, been more honored in its breach than in its observance. But, whatever may be said of the propriety of plaintiff’s act in going between the cars, it was only one of the concurring causes of plaintiff’s injury. The violation of the statute was one cause of his injury. Turrittin v. Chicago, St. P., M. & O. Ry. Co., 95 Minn. 408, 104 N. W. 226; Sprague v. Wisconsin Cent. Ry. Co., 104 Minn. 58, 116 N. W. 104. This is all that is necessary to create liability. The statute which abolishes contributory negligence ‘would be nullified by calling plaintiff’s act the proximate cause, and then defeating him, when he could not be defeated by calling his act contributory negligence. * * * It is only when the plaintiff’s act is the sole cause — when defendant’s act is no part of the causation — that defendant is free from liability under the act.’ Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42, 47, 34 Sup. Ct. 581, 582, 58 L. Ed. 838, Ann. Cas. 1914c, 168, quoting 201 Fed. 844, 120 C. C. A. 166.”

The judgment in that case was affirmed by a unanimous-court in Great Northern Ry. Co. v. Otos, 239 U. S. 349, 36 Sup. Ct. 124, 60 L. Ed. 322, where it is said:

“Under the instructions of the court, the jury must have found that the defect was the proximate cause of the injury, as that was made a condition of the plaintiff’s right to recover. If so, the fact that the plaintiff’s conduct contributed to the result was not a defense.”

It will be seen that the entire question turned upon what was the proximate causé of the injury.

4. In the case at bar, if the railroad company was negligent in failing to equip and maintain its cars with automatic couplers in such safe condition as is required by the act of Congress, and because thereof the cars became uncoupled, such failure was the proximate cause of the injury, and, notwithstanding the fact that the plaintiff may have been guilty of contributory negligence in jumping from the car, he can recover.

5. And since section 4 of said act of Congress, supra, provides that an employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributes to the injury of an employee, no error was committed in striking the defense of assumed risk.

Counsel for appellant say in their brief that, had the company admitted in its answer that the defective coupling was the proximate cause of the injury, there might be some ground for sustaining the motion. We do not think it matters whether or not the answer admitted the defective coupling to have been the proximate cause of the injury. It is clear from the complaint that such was the theory of the pleader; and in view of the denials in the answer, if plaintiff had failed to establish that fact by his evidence, he could not have recovered a judgment.

The court did not err in its order striking the defenses of contributory negligence and assumed risk, and the judgment should be, and is, affirmed.