Pauly v. McCarthy , 109 Utah 398 ( 1946 )

I dissent. I am of the opinion that the complaint states a cause of action, and if the evidence supports the allegations therein contained, the plaintiff is entitled to a judgment.

This case was tried with a jury sitting to determine the facts. The prevailing opinion holds that there was not sufficient evidence to go to the jury as to the place where Harry O. Pauly was working when injured being a place to work, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Mr. Justice Wolfe has described the railroad tracks at Chacra, Colorado. The passing tracks are approximately 6000 feet in length. They are situated at a very favorable place, where clear vision can be had from one end of the passing tracks to the other.

The opinion recites, that Pauly had been crossing over the bridge for several years. He knew the ground. He had walked across the bridge from which he fell or which he missed, at least 50 times and at least on ten occasions he had gone over the bridge at night. Ventura, the brakeman on the train testified as to the use the passing tracks were put to.

At the time of the accident the train Pauly was in charge of was traveling west. It remained on the main tracks at Chacra while trains coming from the west could pass by using the side or passing tracks. The Pauly train had stopped to repair a hot box. Both the conductor and brakeman knew the need for stopping. The hot box had also been seen by the engine crew.

Mr. Justice Wolfe makes this conclusion:

"If the passing track at Chacra is a place to work then every other passing track on the road is by the same token a place to work" and then later says, "The whole main line would then have to be considered as a place to work."

If I thought it were my prerogative to pass upon the evidence and I could reach the same conclusion as Mr. Justice Wolfe there would be no need of this dissent. However, I think Mr. Justice Wolfe, from the facts revealed by him in his opinion, is not justified in drawing such conclusions.

I believe that the case presented a jury question and that the trial court properly submitted the matter. This conclusion is supported in a recent case, Bly v. Southern R. Co., 183 Va. 162,31 S.E.2d 564.

This case is very similar to the case at bar and supports this dissent both as to the necessity of submitting the case to the jury and finding that an accident which occurred under quite similar circumstances happened at "a place of work". I recommend that all interested read this opinion, part of the syllabus of which is as follows:

"4. An unsafe place to work provided by master for the servant is a violation of one of the non-assignable duties of the master, and amounts to negligence.

"5. Generally, negligence is a jury question where there is a conflict in evidence with relation to existence of facts from which negligence may be inferred, and where there is room for difference of opinion between reasonable men as to the inferences which might fairly be drawn from conceded facts."

See also Chicago Great Western R. Co. v. Peeler, 8 Cir.,140 F.2d 865. I quote from the syllabus:

"1. In determining sufficiency of evidence on appeal, where jury found for plaintiff after motion for a directed verdict was overruled, the court was bound to resolve all conflicts in the evidence against defendant and plaintiff was entitled to the benefits of such favorable inferences as the jury might reasonably have drawn therefrom."

"5. In action under Federal Employers' Liability Act, jury could believe testimony of plaintiff though it was directly contradicted by testimony of defendant's witness."

The case cited supra is used by Mr. Justice Wolfe in his opinion but it does not support his contentions but is authority to the contrary. I also call attention to a recent decision from the United States Supreme Court, Bailey, Adm'r v. CentralVermont Railway, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, decided May 24, 1943. In this case the court held the question of facts was one for the jury and also upheld the original trial court's verdict based upon a finding that the injured workman was hurt when employed at "a place of work".

The case of Haskins v. Southern Pacific Co., 3 Cal.App.2d 177,39 P.2d 895, is similar to the one at bar in many respects. The person injured alighted from the train he was working on at a station or siding called Numana, Nevada. There were passing tracks, a station, and a place to unload freight. The brakeman was off the train between the tracks for the purpose of looking for hot boxes. This case supports the contention that the problem of fact is a jury question, and, I feel, supports the case at bar in other respects.

Feeling that the factual conclusions in the prevailing opinion are not warranted and that the court has failed to give these more recent cases proper weight and application, I feel the necessity of this dissent.