Butz v. Union Pac. R.

232 P.2d 332, 120 Utah 185, 1951 Utah LEXIS 199

• Court: Utah Supreme Court
• Decided: June 19, 1951
• Docket: No. 7441
• Status: Published

Opinions

CROCKETT, Justice.

The plaintiff was injured while performing his duty as a switchman on the defendant railroad. He was riding the side of a baggage car as it was being pushed on to the baggage tracks of the Denver Union Terminal Company when he struck his back against a baggage truck which was protruding so close to the tracks that it would not clear him. He brought this action under the Federal Employers’ Liability Act, 45 U. S. C. A. § 21 et seq. hereinafter referred to as the F. E. L. A., to recover damages for such injuries. After the presentation of the plaintiff’s evidence, the trial court granted a nonsuit, from which ruling the plaintiff has appealed. His contention is that the evidence presented a jury question as to whether defendant was negligent in failing to use reasonable care in providing him a safe place in which to work.

As will hereinafter appear, the difficult question in this case is not whether the plaintiff was furnished a safe place in which to work, but whether defendant railroad should be held responsible for the conditions at the place of plaintiff’s injury and the fact that the baggage trucks were misplaced too close to the tracks where plaintiff was required to perform his duties at the time he got hurt.

The Union Pacific and four other railroads use the facilities of the Denver Union Terminal Company, hereinafter for brevity called the Terminal Company, in connection with their railroad operations for the purpose of having the baggage cars loaded and unloaded by that company. Except for the arrangement to perform this service, there is no evidence that the Terminal Company is a subsidiary of or in any way connected with the Union Pacific. All of its facilities, including its tracks, loading platform and baggage trucks, are its own and are operated by its own employees. Its tracks where the injury occurred are called “the outside baggage track”; they proceed westerly in its yard to and along the south side of its baggage loading platform. This is the conventional raised concrete platform alongside of the tracks just an inch or two higher than the top of the rails. The platform is far enough from the track (about 20 inches) to accommodate the overhang of the cars and on the platform about two feet further from the track, and parallel to it is painted a yellow clearance line. The baggage trucks while not in use are supposed to be parked back of this line, and if so parked there is sufficient clearance for men riding on the steps alongside these baggage cars.

In the performance of his duties on the day of his injuries, the plaintiff and the crew with whom he worked were moving a cut of three baggage cars westward on to the said outside baggage track for loading. His duty as a switchman at the time in question was as “field man” which required him to ride the point or lead car of the cut as it was being pushed on to this baggage track alongside the loading platform referred to; to keep a lookout ahead for obstructions, impaired clearances, and to pass back any necessary signals to the engineer, as the cars were pushed on to this track. Ten baggage trucks were lined up along the platform, the easternmost one being about ten feet from the east end of it. There was a slight curve to the plaintiff’s right as he approached the loading platform. This curve is sufficient so that from plaintiff’s position as he approached the platform, the truck nearest him (the easternmost truck) obscured his view of the other trucks and their alignment until he was very close (within a few feet — but not exactly determinable) to the trucks. Two of the trucks had been left over the yellow line and thus foul of the clearance.

Plaintiff testified,

“When I got right around the curve to the straight track I was up against these trucks mostly. I didn’t have enough time to jump off because there wasn’t enough room in between there * * * so I tried to take my arms off to give a signal and just at that time I couldn’t give a signal * * * then one of these trucks hit me on the elbow.”

This truck in turn moved the next truck even closer to the rail and his back was struck and he was crushed between this truck and the car. By this time, other members of the crew saw what was happening and signalled a stop, which was made promptly. The plaintiff testified that all other members of the defendant’s crew had properly performed their duties.

There is no evidence in the record as to who placed these trucks as they were positioned, nor the length of time they had been there. Usually, where equipment is handled and used exclusively by company employees on its property, there is a permissible inference that such equipment was placed in the position it is found by company employees, Baltimore & O. R. Co. v. Kast, 6 Cir., 299 F. 419; Illinois Central Railroad v. Skinner’s, Adm’x, 177 Ky. 62, 197 S. W. 552, certiorari denied 246 U. S. 662, 663, 38 S. Ct. 333, 62 L. Ed. 928, and Clark v. Chicago & N. W. Ry. Co., 226 Minn. 375, 33 N. W. 2d 484.

The defendant herein apparently does not disagree with the idea that a similar inference could properly be drawn in this case. In shifting blame from themselves for the misplacement of the trucks, they state in their brief,

“The evidence showed beyond any question that the defendant did not leave the trucks in the place where the accident occurred, but on the contrary the trucks were left there by employees of the Denver Union Terminal Company.”

From the facts which were shown, that is most likely so. There was sufficient evidence from which the jury could properly be allowed to infer that the trucks were left afoul of the clearance by employees of the Terminal Company. Therefore, for the purpose of this opinion, we assume that the trucks were left afoul of the clearance by employees of the Terminal Company. That completes the factual picture.

It is settled beyond question that it is the duty of the employer to exercise reasonable care to furnish his employees a reasonably safe place to work and this includes, situations where the employer sends his employee on the premises of another to perform his duties. 2 Sherman & Redfield on Negligence, Revised Edition, Sections 193 and 202; Albert Miller & Co. v. Wilkins, 7 Cir., 209 F. 582; Porter v. Terminal R. Ass’n of St. Louis, 327 Ill. App. 645, 65 N. E. 2d 31, 33. In the latter case, the court referred to that duty and stated the proposition very clearly:

“* * * and this duty follows the.Master even though the servant is sent upon the premises of another to do his work. This duty is non-delegable and affirmative, and must be continuously fulfilled and positively performed”, citing supporting authorities.

The defendant makes no contention that the place where plaintiff was injured was a safe place to work. The problem raised by the defendant and the one which gives us concern, as heretofore mentioned, is whether the defendant company is chargeable with responsibility for the condition there existing and for the placement of these trucks so as to impair the clearance and endanger the plaintiff.

There is abundant authority that a defendant employer is charged with responsibility for conditions of danger upon the property of others of which it either has actual knowledge or is charged with constructive knowledge because the hazard is of such a nature and has existed for sufficient time that in the exercise of reasonable care the employer should have discovered it. Numerous, of the cases cited and discussed in the briefs are to that effect. In Schlueter v. East St. Louis Connecting Ry. Co., 316 Mo. 1266, 296 S. W. 105, 112, involving a defective condition of tracks of another railroad, the court held that if the defendant chose to use another railroad’s tracks it. was bound to see that they were reasonably safe for use by its employees. In Terminal R. Ass’n of St. Louis v. Fitzjohn, 8 Cir., 165 F. 2d 473, 477, the plaintiff while riding the side of the car alongside of a ramp upon the property-of the United States Government at its ordinance plant near St. Louis, Missouri, was knocked from the car by certain iron pipes extending from the ramp. It was contended that because the railroad company did not own or control, or have the right of control, over the ramp that it was not responsible. The court supported the judgment for the plaintiff and in doing so used the following language:

“That a master is bound to use reasonable care to provide a safe place in which his servant may work is now too well established to require citation of authority, and it can make no difference, so far as the servant is concerned, whether the master is using his own property or that of another." (Emphasis added.)

and cites supporting authorities. For other cases so holding see Porter v. Terminal R. R. Ass’n, supra; Ellis v. Union Pacific R. Co., 147 Neb. 18, 22 N. W. 2d 305, Id., 329 U. S. 649, 654, 67 S. Ct. 598, 91 L. Ed. 572.

Defendant maintains that there is no basis for either its actual or constructive knowledge of the condition of danger which existed here. The defendant is charged with knowledge of the physical conditions there existing including the tracks, platform, the baggage trucks and the method of their use and operation.

Reviewing plaintiff’s situation: his duty required him to ride on the front sill step of the baggage car as it came into the baggage loading platform and his normal position was with his face to the car and his back to the platform. The curve in the track was such that, as plaintiff approached, the first truck blotted out view of the other trucks until he was so near to them that, according to his testimony, he could neither safely jump off nor signal. The clearance line back of which these trucks were supposed to be parked was so close to the edge of the platform it barely allowed room enough for a man to ride past safely, even if the trucks were properly parked; the trucks themselves are on wheels; are designed for facility of movement by hand and can readily be moved by anyone, carelessly, casually or otherwise, and there was no barrier or other control to prevent their running afoul of the clearance. The plaintiff’s interest had to be divided between the security of his position on the car, watching the track ahead, passing any necessary signals to the engineer respecting the movement of the train and its proper stopping place, and watching his clearance with the trucks. Under those circumstances, could reasonable minds say that the defendant should have taken other precautions in providing plaintiff with a reasonably safe place to perform his duties? Certain language from the case of Boston & M. R. R. v. Meech, 1 Cir., 156 F. 2d 109, 111, Certiorari denied, 329 U. S. 763, 67 S. Ct. 124, 91 L. Ed. 658, is pertinent. In that case, the decedent was working on a washstand outside of the defendant’s engine house, which consisted of two wooden platforms, apparently oblivious to an engine which ran into and killed him. The case was tried on two counts, the first being negligent operation of the locomotive, and the second being failure to provide a safe place to work. The court said:

“The sufficiency of the evidence to support the verdict on the second count is at least equally clear. The defendant might have painted lines on the platforms * * * or it might * * * have set the platforms of its washstand back from the tracks far enough to prevent locomotives from overhanging them at all.

“From the foregoing, it is clear that although some precautions were taken for the decedent’s safety, further precautions were possible, and from this it follows, as we read the decisions cited above, that there was an ‘evidentiary basis’ for submitting the issue of the defendant’s causal negligence to the jury”. (Emphasis added.)

We appreciate that to apply the rule, “further precautions were possible,” literally, is not sound because there is no conceivable injury which by hindsight could not have been prevented by some precaution. The test is not whether afterward one may see a way that the injury could have been prevented, but whether the railroad in the exercise of ordinary prudence and cafe should have reasonably foreseen the likelihood of injury. Under the circumstances of the instant case, this is á matter upon which reasonable minds could well differ. Whether additional precautions should have been taken by the defendant to provide him with a safe place to work was therefore a question for the jury.

What the employee wants and needs is a reasonably safe place to perform his duties. He is not concerned with and indeed cannot know the technicalities of ownership, rental, lease or reciprocal exchange of facilities of an involved railroad system. For him to have the assurance of safety in some phases of his work and to be exposed to danger at his own risk and responsibility in others would be contrary to reason. It might even be argued that he could better fend for himself on the master’s premises where he was acquainted with his surroundings than on premises of third parties with which he is unfamiliar. The employer exercises exclusive choice both as to the place of work and control over safety factors. It is therefore not unreasonable to charge him with the duty of providing a safe place to work.

It is repeatedly argued by the defendant carriers in these cases that the courts are pushing ever closer to the outside periphery of any possible conception of liability based on negligence, and toward if not actually into the field of making the railroads insurers of the employees. The answer to this charge is contained in the case of Wilkerson V. McCarthy, 336 U. S. 53, 69 S. Ct. 413, 417, 93 L. Ed. 497. The U. S. Supreme Court speaking through Mr. Justice Black says:

“* * * Respondents’ argument here is * * * that the Federal Act does not make the railroad an absolute insurer * * *. That proposition is correct * * * the Act imposes liability only for negligent injuries. * * * But the issue of negligence is one for j'uries to determine * * *.

“* * * This assumption, that railroads are made insurers where the issue of negligence is left to the jury, is inadmissible. It rests on another assumption, this one unarticulated, that juries will invariably decide negligence questions against railroads. This is contrary to fact, as shown * * * by other Federal Employers Liability cases [listing cases supporting this statement].

* * * * *

“ ‘We see no reason, so long as the jury system is the law of the land * * * why it should not decide such questions as these as well as others.’ ”

To the list supporting his statement now can be added the Wilkerson case itself because when it was finally tried to a jury in the Third District Court, the jury found in favor of the railroad and against the plaintiff no cause of action.

In his concurring opinion in the Wilkerson case, Mr. Justice Douglas, in discussing the purpose of the F. E. L. A. stated:

“The Federal Employers’ Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations. Not all these costs were imposed, for the Act did not make the employer an insurer. The liability which it imposed was the liability for negligence. * * *

❖ * # # *

“That purpose was not given a friendly reception in the courts.”

He amplifies his statement that the courts have not been as cooperative as they might have been in giving effect to the purpose of the act and reports a statistical study to show what has happened in the Supreme Court of the United States in respect to these cases. He points out that of 55 petitions for certiorari in such cases from 1943 to the date of the Wilkerson case (January 1949), 20 writs were granted, only one of which was granted to an employer; the other 19 were granted at the instance of employees who had been aggrieved by adverse rulings of lower courts. In 16 of the 19 cases, the lower courts were reversed for depriving an employee of a trial by jury.

This history, together with the language of the adjudicated cases, including the Wilkerson case itself, point to one inescapable conclusion: The Supreme Court of the United States says with unequivocal certainty that wherever a railroad employee under F. E. L. A. is injured in the course of duty and there is any evi-dentiary basis upon which reasonable minds could believe that reasonable care might have required additional safety measures which were not taken, and which contributed in whole or in part to cause the injury, the case should be tried to a jury. Tiller v. Atlantic Coast Line R. R. Co., 318 U. S. 54, 63 S. Ct. 444, 87 L. Ed. 610; Lavender V. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916 ; and see the case of Jacob v. City of New York, 315 U. S. 752, 62 S. Ct. 854, 86 L. Ed. 1166, wherein Mr. Justice Murphy speaking for the court stated:

“The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.”

With this sentiment we are in accord.

As suggested by Mr. Justice Wolfe in the case of Raymond v. Union Pacific Railroad Co., 113 Utah 26, 191 P. 2d 137, 141:

“It may be regretted that there is no federal workmen’s compensation act, similar to those which have been adopted in nearly all of the states * * * but that is a matter to be corrected by the Congress and not by us.”

It would unquestionably be more in the interest of social justice and sound economy both for the employer and employee if the burden of loss occasioned by injury and death in employment, which is borne partly by each, should be handled by uniform, adequate and proper awards to the injured employee or his dependents, rather than to leave it to the uncertain and sometimes capricious determination of courts and juries with the result that some employees and their families receive munificent awards while others go entirely without.

Finally, there is the question of plaintiff’s alleged contributory negligence. Although the trial judge did not expressly so state, both counsel in their briefs have proceeded on the assumption that he based his ruling granting a nonsuit also on the ground that the contributory negligence of the plaintiff was the sole proximate cause of his injuries. The F. E. L. A. specifically provides that an employee’s contributory negligence shall not bar his recovery but shall only diminish the damages proportional to the contributory negligence. However, if plaintiff were guilty of contributory negligence which was the sole proximate cause of his injury, that would mean that any negligence of the railroad did not proximately cause his injury and therefore preclude any recovery against it. In making this contention, the defendant places particular stress on the fact that the plaintiff had the assigned duty to watch this clearance which was fouled and which caused his injury. In that regard, compare the case of Coray v. Southern Pac. Co., 335 U. S. 520, 69 S. Ct. 275, 93 L. Ed. 208, where the decedent in riding a motor car behind a train apparently was ignoring his duty to watch ahead and violating a safety rule of the company not to travel less than 400 feet behind the train. The train stopped abruptly, the motor car ran into the train and he was killed. The Supreme Court of the United States held that a jury question was presented. It is true that the case involved the Safety Appliance Act, 45 U. S. C. A. §§ 1-7, specifically defective brakes on the part of the railroad, but nevertheless if the decedent’s negligence had been the sole proximate cause of his death there could have been no recovery.

Compare also Ryan v. Twin City Wholesale Grocery Co., 210 Minn. 21, 297 N. W. 705, where, although the plaintiff’s duty was not specifically to inspect the stacking of the bags, the negligent stacking thereof must have been as apparent to him as to anyone. In practically every case where the danger to trainmen was impaired clearance, the same argument could be made as defendant advances here. Notwithstanding this, in the cases we have examined it appears to have been uniformly held that the question of the employees’ contributory negligence in not observing and avoiding the danger of the impaired clearance was a jury question. See Ellis v. Union Pacific, supra; Terminal R. Association of St. Louis v. Fitzjohn, supra, and Kanawha & Michigan Railway Co. v. Kerse, 239 U. S. 576, 36 S. Ct. 174, 60 L. Ed. 448.

Where the evidence is such that the jury may find the defendant was negligent in allowing a condition of danger to exist as we have held here and the plaintiff’s duty required him to ride the side of the car into that area with his back to the platform with his attention necessarily divided, the question of his contributory negligence would also be one for the jury to determine.

The cause is remanded with directions to grant plaintiff a trial by jury. Costs to appellant.

WADE and McDONOUGH, JJ., concur.