Opinion
9-22-1955
KEIPER v. NORTHWESTERN PACIFIC RAILROAD CO. Civ. 8560.
Mannon & Brazier, Mannon, Brazier & Bell, Ukiah, and Dunne, Dunne & Phelps, San Francisco, for appellant. Burke & Rawles and Wayne P. Burke, Ukiah, for respondent.
KEIPER
v.
NORTHWESTERN PACIFIC RAILROAD CO.
Mannon & Brazier, Mannon, Brazier & Bell, Ukiah, and Dunne, Dunne & Phelps, San Francisco, for appellant.
Burke & Rawles and Wayne P. Burke, Ukiah, for respondent.
Hearing denied.
CARTER, Justice (dissenting).
The case was tried before a most able and conscientious judge and a jury composed of substantial citizens of Mendocino County. The effect of the decision of the District Court of Appeal is to deny plaintiff a jury trial in a case where such a trial is a matter of right under both the Constitution of the United States and of California as well as under federal and state statutes.
Since this is a case which may be reviewed by the Supreme Court of the United States, I am constrained to file a dissenting opinion to the order of the Supreme Court of California denying plaintiff a hearing for the purpose of calling attention to the errors in the opinion of the District Court of Appeal, on which its conclusion is based so that such errors may be called to the attention of the Supreme Court of the United States in the event the case is ultimately presented to that court.
The District Court of Appeal not only reversed the judgment in this case upon an erroneous assumption of the factual situation and application of the law thereto, but directed that a judgment be entered in favor of the defendant notwithstanding the verdict, thus depriving plaintiff of an opportunity to retry the case and present additional evidence in support of her causes of action in the event such evidence is available to her.
In my opinion the decision of the District Court of Appeal in this case not only erroneously denies plaintiff the right to a trial by jury but will result in a gross miscarriage of justice.
The decedent, Ralph Keiper was employed by the defendant railroad as a welder and had been sent to Echo, a siding south of Ukiah, to build rail jetties where a portion of the right of way had been washed away. Two 'outfit' (living quarters) cars had been spotted on the siding which paralleled the main line track. One of these cars was assigned to the decedent as his living quarters while on this job. He was the only one using the car. The siding on which the car was spotted was a few feet west of the main line track. In the middle portion of the car assigned to decedent there were two doors, one opening on the side next to the main line track, the other on the side away from it.
On the morning of October 28, 1949, the severed body of Ralph Keiper was found lying just outside the westerly rail of the defendant company's main line track. Inspection of the locomotive of a train which had passed the siding at about 10:00 p. m. the night before, showed that the pilot (cowcatcher) had been bent back and that there was blood on the wheels. Footprints and a scuff mark indicated that decedent had been between the rails of the main line track, about even with his living quarters car, when struck by the locomotive.
During the trial of this action, brought by Keiper's widow as administratrix of his estate, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the engineer of the locomotive above mentioned testified that his speed as he passed the Echo siding was about 18 miles per hour, that the headlight was on high beam and illuminated the track 20 car lengths away, that he sounded the whistle about one mile from Echo, that he saw nothing on the tracks as he approached the outfit cars.
The jury rendered a verdict in favor of plaintiff in the sum of $37,500. Defendant's motion for judgment notwithstanding the verdict was denied. The District Court of Appeal reversed the judgment entered on the verdict, holding that there was no evidence to support the jury's finding of negligence on the part of defendant.
The F.E.L.A. (Federal Employers' Liability Act) provides in substance that a common carrier engaged in interstate commerce shall be liable to those designated in the act for injury to or death of any employee 'resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, boats, wharves, or other equipment.' Prior to 1939 the accomplishment of the purpose of the act to place on the employer some of the cost of the injuries and lives which it consumed in its operations was somewhat hampered by the engrafting of defenses such as contributory negligence, assumption of risk, etc. The act was amended by Congress in 1939 to eliminate some of these defenses. See Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. The act now provides that contributory negligence of an employee who meets death or is injured shall not bar recovery but that damages suffered shall be diminished in proportion to the amount of negligence attributable to the employee, provided however that such diminution shall not apply nor shall any doctrine of the assumption of risk apply in any case where there has been a violation by such common carrier of any statute enacted for the safety of employees and where this violation contributed to the occurrence of injury to or death of an employee.
All questions of substance presented in actions under this statute are federal questions upon which the decisions of the federal courts are conclusive and binding upon all state courts. Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 207 F.2d 899; Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.
The jury verdict in favor of plaintiff was on two counts of his complaint, based respectively on negligence of the defendant in failing to provide a safe place to work, and upon negligence in the operation of the train. The issues raised on the appeal and decided by the District Court of Appeal in favor of defendant were: (1) Is there any evidence of negligence in failing to provide a safe place to work? (2) Is there any evidence on negligence in the operation of the train? (3) Is there any evidence that deceased was employed, within the provisions of the F.E.L.A., at the time of his death?
On the issue of employment, there was evidence that a bunk car had been assigned to the decedent and was transported by defendant from place to place on its lines for his living quarters, so that he might be close to his work. There was evidence that his job was that of welding rails, and at the particular time in question, he was at the particular location for the purpose of welding rails in constructing jetties to prevent river damage.
In Lukon v. Pennsylvania R. Co., 3 Cir., 131 F.2d 327, it was held than an employee who had stopped work and was walking along the tracks in the direction of his home was within the act and an employee at the time. It was stated, 131 F.2d at page 329: 'The Federal Employers' Liability Act was designed to be applied liberally for the protection of railroad and other employees.'
A member of a track gang employed in Tennessee who had left the work site for the week end to go to his home in North Carolina, was held to be engaged in the duties of his employment when he returned to his assigned bunk car on Friday night after missing a train home, and was injured in the explosion of a lamp used to furnish light for the bunk car. Atlantic Coast Line R. v. Meeks, Tenn.App., 208 S.W.2d 355.
Where an engineer was on his way to the boarding house, but was shortly to depart upon his run, and had not gone beyond the limits of the railroad yard when he was struck, the court held that he was on duty and employed in commerce. North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591.
A workman injured crossing the employer's tracks in his automobile while returning to the job in the morning was employed within the F.E.L.A. Flack v. Delaware, L. & W. R. Co., 2 Cir., 45 F.2d 683.
One who had finished his work and was leaving held to be still an employee under the F.E.L.A. Erie R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057.
An employee who was assigned a bunk car to sleep in, but who, due to hot weather and vermin in the bunk car, decided to sleep outside, where a train cut off his foot, was helt to be an employee at the time of the injury and entitled to recover from the railroad company. Mostyn v. Delaware, L. & W. R. Co., 2 Cir., 160 F.2d 15.
In a case very similar to the case at bar, decided in the Ninth Circuit, an employee struck on the main line track next to his assigned bunk car over an hour before he was due to begin work for the day was held to be 'undoubtedly' in the defendant's employ and engaged in interstate service. The employee was hit while crossing the track to visit the toilet. It was stated: 'By the condition of his employment, he was necessarily on appellant's primises, and was making necessary preparations for the work in which he was to engage an hour and a half later, in a reasonable manner and within a reasonable time.' Chicago, M., St. P. & P. R. Co. v. Kane, 9 Cir., 33 F.2d 866, 868.
The evidence in the present case indicating negligence in furnishing an unsafe place to work includes testimony and exhibits showing that the bunk car furnished to decedent as living quarters had an entrance on the side next to the main line track, less than five feet from passing cars; that the bunk cars were dark in color, making them difficult to observe at night; that no warnings were given by signs or otherwise to warn trainmen on the main line track of the fact that there were workmen living in these cars; that no precautions were taken by the defendant to protect workmen, living in the bunk cars, against passing trains. Many cases, indicate that the dangerous condition of the premises can be inferred from the evidence in the record in the case at bar. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Atlantic Coast Line R. v. Meeks, Tenn.App., 208 S.W.2d 355.
Evidence of negligence in the operation of the train includes: (1) Evidence indicating that the deceased was on the railroad track at 10:00 p. m. on October 27, 1949, between the rails of the main line track, opposite the entrance to his bunk car. This evidence includes footprints, scuff marks, blood on the pilot and driver wheels of the locomotive which passed the siding at ten o'clock and blood on the west rail from the location of the footprint and scuff marks south for about 90 feet; the cowcatcher or pilot, was bent back about three inches indicating that the front of the engine had struck something; the fact that Mr. Keiper's body was severed in two pieces. (2) Evidence indicating that the view of the decedent at this location was such that the engineer should have seen him. This evidence includes testimony that the tracks were straight for one mile to the north and one-half mile to the south; that there were no weeds or other obstructions present to obstruct the view; that Mr. Keiper's clothing was of a type which should have been easily seen; that the engine was equipped with a headlight which clearly illuminated the area from the engine to a distance of 750 feet ahead; that the engineer and fireman of the engine had ample opportunity to observe. (3) Evidence that the engineer failed to see Mr. Keiper. (4) Evidence that the engineer failed to blow the locomotive whistle to give warning, while passing the cars, excepting that he blew it at a distance of approximately one mile to the north.
The District Court of Appeal opinion cites eight cases as supporting its conclusion that, as a matter of law, the record was devoid of evidence to support a finding of negligence on the part of defendant. Lenz v. Union P. R. Co., 128 Neb. 99, 258 N.W. 33; Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 199 P. 523; Greene v. Atchison, T. & S. F. Ry. Co., 120 Cal.App.2d 135, 260 P.2d 834, 40 A.L.R.2d 873; Moore v. Chesapeake & O. R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547; Looney v. Metropolitan Railroad Co., 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564; Chesapeake & Ohio Ry. Co. v. Thomas, 4 Cir., 198 F.2d 783; Kansas City Southern Ry. v. Jones, 276 U.S. 303, 48 S.Ct. 308, 72 L.Ed. 583; and Davis v. Alabama Great Southern R. Co., 324 U.S. 846, 65 S.Ct. 676, 89 L.Ed. 1407.
The Lenz case was decided in 1934, five years prior to the amendment liberalizing the F.E.L.A. The decision was apparently based on the defense of contributory negligence.
The Lammers case was not decided under the rules applicable to actions brought under the F.E.L.A. The plaintiff there was a passenger, not an employee of the defendant. The question for decision there was whether the ejection of the intoxicated plaintiff was the proximate cause of his subsequent injuries. There was no evidence to indicate that plaintiff had been on the track.
In the Greene case, there was no evidence that the decedent a licensee on the defendant's premises, not an employee had been on the track nor that he had been clearly visible to the engineer. The court in the Greene case cited with approval the rule that an engineer could be held to have been negligent for failure to look or looking, failure to see a person on the tracks, but held that rule not applicable for the reason that there was no evidence to indicate that the decedent had been on the track.
Moore v. Chesapeake & O. R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547, held that the jury may believe or disbelieve all or a part of the testimony it hears in arriving at its verdict. In that case it was held that the railroad was not negligent where its train ran over the decedent after he toppled from the train. The engineer was in the process of stopping when plaintiff was run over.
The Looney case was decided before the amendment of 1939. A case similar in its facts to the Looney case, but arising after 1939, held that the matter should have been submitted to the jury. Sweeting v. Pennsylvania R. Co., 3 Cir., 142 F.2d 611.
The other cases relied upon by the District Court of Appeal may be similarly distinguished. It is worthy of note that in none of the cases cited by the District Court of Appeal was there any evidence that the deceased or injured person had been on the tracks in front of the train.
In contrast to the cases cited by the District Court of Appeal in support of its decision, many cases, both in California and in the federal courts, have indicated that evidence similar to that presented in the present case raised questions of fact properly submitted to the jury for determination. Leet v. Atchison, Topeka & S. F. Ry. Co., 66 Cal.App.2d 413, 152 P.2d 341; Weiand v. Southern Pac. Co., 34 Cal.App.2d 500, 93 P.2d 1023; New York Cent. R. Co. v. Marcone, 281 U.S. 345, 50 S.Ct. 294, 74 L.Ed. 892; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Pennsylvania R. R. v. Goldie, 6 Cir., 182 F.2d 9; Norfolk & W. Ry. Co. v. McKenzie, 6 Cir., 116 F.2d 632.
Where, as here, questions of fact have been properly submitted to the jury, the appellate courts are not at liberty to set aside the jury's findings and draw other inferences and conclusions. Here there is ample evidence to support the findings of the jury. The fact that other inferences might reasonably be drawn from the same evidence does not justify the reversal of this judgment. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Johnson v. Southern Pacific R. Co., 154 Cal. 285, 97 P. 520; Seller v. Market-Street Ry. Co., 139 Cal. 268, 72 P. 1006.
I have heretofore in numerous concurring and dissenting opinions endeavored to point out what I believe to be a trend in the decisions of both the Supreme Court of California and some of the District Courts of Appeal to deprive litigants of their constitutional right to a trial by jury. Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663; Hawaiian Pineapple Co. v. Industrial Acc. Comm., 40 Cal.2d 656, 255 P.2d 431; Better Food Markets v. American Dist. Teleg. Co., 40 Cal.2d 179, 253 P.2d 10, 42 A.L.R.2d 580; Atkinson v. Pacific Fire Extinguisher Co., 40 Cal.2d 192, 253 P.2d 18; Sutter Butte Canal Co. v. Industrial Acc. Comm., 40 Cal.2d 139, 251 P.2d 975; Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 251 P.2d 955; Gill v. Hearst Publishing Co., 40 Cal.2d 224, 253 P.2d 441; Goodman v. Harris, 40 Cal.2d 254, 253 P.2d 447; Pirkle v. Oakdale Union etc. School Dist., 40 Cal.2d 207, 253 P.2d 1; Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 256 P.2d 933; Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 256 P.2d 962; Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947; Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15; Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977; In re Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990; Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834; In re Estate of Welch, 43 Cal.2d 173, 272 P.2d 512. Since the decision of the District Court of Appeal in the case at bar falls into the pattern of the last cited cases, I cannot refrain from again expressing my disapproval of this trend which, in my opinion, is pervasive and perversive of one of the most sacred constitutional guarantees heretofore enjoyed by the American people.
From the foregoing it is clear that the Supreme Court of California should have granted plaintiff's petition for hearing in this case and affirm the judgment of the trial court.