McBee v. ATCHISON, TOPEKA & SANTA FE RAILWAY. CO.

457 P.2d 987, 80 N.M. 468
CourtNew Mexico Court of Appeals
DecidedAugust 1, 1969
Docket311
StatusPublished
Cited by15 cases

This text of 457 P.2d 987 (McBee v. ATCHISON, TOPEKA & SANTA FE RAILWAY. CO.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McBee v. ATCHISON, TOPEKA & SANTA FE RAILWAY. CO., 457 P.2d 987, 80 N.M. 468 (N.M. Ct. App. 1969).

Opinion

OPINION

SPIESS, Chief Judge.

This appeal is by plaintiff-appellant, McBee, from a judgment based on a jury verdict in favor of defendant, railway company. The case is governed by and arises under the Federal Employers’ Liability Act, 45 U.S.C.A. Sec. 51 et seq. McBee, an employee of the railway company, claims to have been injured as he was operating a switch in the railway company’s yard at Albuquerque. He says that he “was in the customary position to throw said switch and the injury occurred when extra pressure had to be applied to said switch because it was ‘frozen.’ ” McBee asserts that the railway company was negligent in failing to properly maintain and service the switch and in failing to provide him with a safe place to work. His injuries he claims were due to such negligence.

Evidence was introduced showing that at the time of the accident there was debris in the area near the switch. Witnesses stated that if material of the kind shown to be in the area became lodged in the switch it would be difficult to throw. It does not, however, affirmatively appear from the evidence that any of the debris was actually in the switch at the time McBee operated it, nor that the debris contributed in any respect to the accident or injuries.

McBee relies upon two points for reversal. The first is directed at court’s Instruction 13, which reads as follows:

“As it was the duty of all defendant’s employees to exercise ordinary care, so it was the continuing duty of the plaintiff to exercise like care for his own safety, and in so doing, to make a reasonable use of his faculties to warn him of danger.
“If he failed in such duty, he himself was negligent. If his negligence was the sole proximate cause of his injury, then he may not recover.
“If his conduct amounted to contributory negligence as to any injury suffered, and if you should find that the defendant is liable for such injury, then, in fixing the damages to be awarded plaintiff for that injury,' a proportionate reduction must be made because of such contributory negligence, under instructions heretofore given.”

As shown by the record, McBee objected to the instruction upon three grounds: “first, it interjects the defense of assumption of risk in the guise of no negligence; second, it is an incorrect statement of the law; third, contrary to law, it instructs the jury that assumption of risk in the primary sense may amount to contributory negligence.”

He argues that “[i]n instructing the jury that if plaintiff’s injury was caused solely because of plaintiff’s failure to make reasonable use of his faculties to warn him of danger, then plaintiff could not recover, the court in fact instructed the jury that in FELA cases, the duty to protect from sources of injury due to inadvertance [sic] or oversight is in the employee not the employer.”

The contention, in substance, is that the instruction interjects at least to a limited extent the doctrine of the assumption of risk in the case.

We are aware that after amendment to the Federal Employers’ Liability Act in 1939 assumption of risk was not available as a defense to the employer. See Tiller v. Atlantic Coastline R. R. Company, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967 (1943).

Employer’s negligence, together with a causal relationship between such negligence and employee’s injury, is the basis upon which employer liability rests. Employer negligence and its causal relationship to injury are, of course, issues in a proceedings under the Act.

The failure of an employee to make reasonable use of his faculties to warn him of danger under the questioned instruction is characterized as negligence. The term “faculties” employed in the charge might well have been so limited as to exclude the possible construction suggested by McBee. The failure, however, to so limit the instruction is not, in our opinion, reversible error for the reason that the court did instruct the jury specifically as to the duty of the employer to protect the employee from sources of injury resulting from inadvertence or oversight. This latter instruction is in the following language.

“11. Section 4 of the Federal Employers’ Liability Act (45 U.S.C.A. § 54) provides in part that:
‘In any action brought against any common carrier * * * to recover damages for injuries to * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury * * * resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.’
“By this is meant that the defendant has the duty to use reasonable care under the circumstances to protect plaintiff against foreseeable source of injury resulting in whole or in part from any inadvertance [sic] or oversight on the part of the plaintiff in throwing the switch in the manner and the circumstances under which he was throwing the switch.”

Instructions are to be considered as a whole. See Roybal v. Lewis, 79 N.M. 227, 441 P.2d 756 (1968). Applying this rule, particular expressions should be treated as qualified by the context of other instructions. See American Telephone & Telegraph Company of Wyoming v. Walker, 77 N.M. 755, 427 P.2d 267 (1967).

In our opinion, Instruction 13, when considered with Instruction 11, does not suggest that the duty to protect from sources of injury due to inadvertence or oversight is in the employee and not the employer.

We further comment that if Instruction 13, standing alone, is subject to being interpreted in the manner suggested by McBee, which we do not decide, it is nevertheless appropriate that we consider the instructions as a whole and if the entire charge on the matter in issue is adequate and sufficient for the guidance of the jury it is sufficient. See Hamilton v. Doty, 71 N.M. 422, 379 P.2d 69 (1962); McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918, 89 A.L.R.2d 1154 (1961); Blewett v. Barnes, 62 N.M. 300, 309 P.2d 976 (1957).

We are satisfied that the charge involved is sufficient. The claim of error as to Instruction 13 is not well taken.

McBee cites Chavez v. Atchison, Topeka and Santa Fe Railway Company, 79 N.M. 401, 444 P.2d 586 (1968). In Chaves, the court held an instruction to be erroneous which specifically stated that overexertion of one’s capabilities and strength can be negligence on the part of an employee. With reference to such instruction the court said:

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Bluebook (online)
457 P.2d 987, 80 N.M. 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbee-v-atchison-topeka-santa-fe-railway-co-nmctapp-1969.