Butz v. Union Pac. R. , 120 Utah 185 ( 1951 )

WOLFE, Chief Justice

(dissenting).

I dissent.

I believe the non-suit was properly granted. The plaintiff’s testimony fails to show that the defendant was negligent in not furnishing plaintiff with a reasonably safe place to work, and it further appears that plaintiff’s own failure in keeping a lookout was the sole proximate cause of his injuries.

The plaintiff is a switchman of 45 years railroad experience and has been employed by the Union Pacific for the last 25 years. During this period, he has performed switching services in the Denver yards and is familiar with the trackage, the physical layout of the yards, and the type of work being performed on the premises of the Denver Union Terminal. He has guided switching movements over and spotted cars on the “outside” baggage track during the term of his employment and has made as many as six movements over this track on one day.

The movement which resulted in his injuries was the first time that morning the switching crew had moved any equipment over the outside baggage track. Plaintiff’s duty on that movement and the reason for his presence on the first car as “field man” was to act as a lookout for the crew. His primary duty was to observe for any and all obstructions or obstacles which might interfere with the movement, including the presence of equipment so close to the track as to constitute a hazard.

The evidence establishes due care on the part of every member of the train crew, save and excepting the plaintiff. Just prior to the collision the cars were being moved at a speed of approximately 5 miles per hour and the equipment was stopped immediately after his impact without signal by plaintiff. It was his conclusion that every member of the train crew carried out his duties in a careful and proper manner and no complaint is made that the crew members were negligent in the manner in which they controlled, moved and stopped the train. The record is devoid of any evidence as to the relationship between the defendant and the Denver Union Terminal Co. and other railroads using the yards. The plaintiff testified that five railroad companies used the baggage track. However, he further testified that employees of the Union Pacific did not handle the trucking equipment. It was assumed that employees of the terminal company were responsible for placing the trucks across the line, although in the pictures some of them carry the name plate of the American Railway Express Company. It is undisputed that the baggage trucks were not left in the way by any employee of the defendant. Thus the only possible concept by which the defendant might be held negligent is in failing to exercise ordinary care to furnish plaintiff a safe place to work. This action necessarily had to be taken after it gained knowledge that the baggage track and platform were in fact unsafe. There is no evidence that the defendant had actual knowledge that the clearance was impaired on the morning that this accident occurred. The issue is therefore whether the defendant nevertheless had constructive knowledge that the baggage track was an unsafe place. The rule is stated as follows in the American Law Institute Restatement of the Law of Agency paragraph 504:

“The master’s duty as to working conditions does not extend to the condition of premises not in his control nor to the conduct of third persons with whom the servants are to be brought into contact during the course of the work except that he has a duty to disclose dangerous conditions of which he should know.'” (Italics added.)

In Kloetzer v. Louisville & N. R. Co., 341 Ill. App. 478, 95 N. E. 2d 502, 505 the court said:

“Under the Federal Employers’ Liability Act, a railroad company may be responsible to an employee for failing to provide a safe place to work, only if the company knew or in the exercise1 of reasonable care should have known of the unsafe condition.”

O’Mara v. Pennsylvania R. R. Co., 6 Cir., 95 F. 2d 762; Hatton v. New York, New Haven & Hartford R. R. Co., 1 Cir., 261 F. 667.

In an attempt to analyze this situation I have debated whether or not the practice of the Terminal Company in leaving the trucks on the platform created a situation which had inherent in it, the easy possibility of changing from a safe to an unsafe place to work. Is this baggage platform a place which has a likelihood for ready conversion of the premises into an unsafe place to work, a likelihood which is constant in this situation and therefore akin to static negligence? This is the only possible ground I can see upon which it could be argued that the defendant did have constructive notice of the likelihood of harm resulting from the inherently hazardous propensities.

I have come to the conclusion that this theory cannot be applied to the facts of this case. The evidence is too meager to support such conjecture. The doctor who testified as to plaintiff’s injuries and the plaintiff himself were the only witnesses in the case. The plaintiff simply related that the accident happened. He said nothing about ever having seen baggage trucks in the way before, yet he had visited these premises many times. Had it been shown that trucks were repeatedly left on the runway in such a position as to endanger crewmen, or that for long periods of time they remained afoul the clearance space, then the situation might have been such that we could say a daily or continuous condition of actual or potential hazard or a situation with a ready and easy likelihood or propensity for change from a safe to an unsafe state existed. But where, as here, there is no evidence of any prior encroachments across the safety line, it is erroneous to impute knowledge to the defendant that the station platform and track running alongside it were unsafe.

The sole proximate cause of plaintiff’s injuries was the failure to perform the very thing that he was assigned to do. The plaintiff rode the lead car into the baggage platform for the specific purpose of signalling the engineer to stop in the event that objects were in the way. He was in control of the movement of the train. By dropping his hand to his side, he could signal the engineer to stop. Plaintiff was aware of the presence of the trucks on the cement runway as he observed them when the train was approximately one-half mile from the point of the accident. He was looking ahead along the track for possible obstacles and there were no obstructions which cut off his view of the trucks. There is a slight curve in the track and his claimed reason for not observing that the fourth and fifth trucks were across the clearance line was that the first two trucks obscured the exact location of the next trucks. He claims that when he first observed the impaired clearance he was so close to the equipment he could not give the stop signal.

The truth of the matter is that plaintiff did not signal the engineer to slow the movement of the train, so that he might proceed with caution and observe what he claims was hidden from view. Instead, he hugged the ladder and managed to squeeze by the first two baggage trucks, then he struck the third and fourth ones where he was injured. Plaintiff’s negligence in guessing that he would be able to squeeze by was the sole proximate cause of his injuries. It was incumbent upon him to determine whether the train could be backed into the outside baggage track with safety, and this he failed to do. This is not a case of a hidden danger or trap, but is a case of an employee negligently failing to perform a simple routine duty.

In Willis v. Pennsylvania R. Co., 2 Cir., 122 F. 2d 248, 249, certiorari denied 314 U. S. 684, 62 S. Ct. 187, 86 L. Ed. 547, plaintiff was standing watch for a repair gang, repairing a switch. No warning was given by plaintiff to the repair crew of the approach of the car which hit him. The court affirmed a directed verdict for the defendant stating,

“Willis’ neglect of his personal duty to act as watchman was the sole cause of his own death.”

A similar case is Helton v. Thomson, 311 Ill. App. 354, 36 N. E. 2d 267, where a brakeman directed a train to be backed onto a short dangerous switch track causing the train to overturn and held to be the sole proximate cause of the brakeman’s death. I think the plaintiff’s action in the principal case falls in the same category. Where an employee is in charge of the movement of the train and while riding thereon, runs both the train and himself into a parked baggage truck, the sole cause of the accident must be attributed to his failure to signal for a stop.

Before discussing the cases cited by the court, I should make my position clear on two arguments presented in the majority opinion. First, we are not here dealing with the question of whether Congress should, in order to advance social justice, enact a workmen’s compensation act. I could heartily recommend the passage of such a law. What we are compelled to do is to adjudicate rights under our present system which requires the employer to pay the damages suffered by an employee only when the employer is negligent. Second, I have no disposition to disagree with the right to trial by jury, but our present procedure contemplates that a judge also participate in the trial. A jury should not be left to wander without rudder or compass and the trial judge should, if plaintiff fails to establish negligence, direct a verdict in favor of the defendant. Mr. Justice Frankfurter, in the case of Wilkerson v. McCarthy, 336 U. S. 53, 64, 69 S. Ct. 413, 419, 93 L. Ed. 497, 506, said:

“* * * It is an important element of trial by jury which puts upon the judge the exacting duty of determining whether there is solid evidence on which a jury’s verdict could be fairly based. When a plaintiff claims that an injury which he has suffered is attributable to a defendant’s negligence — want of care in the discharge of a duty which the defendant owed to him — it is the trial judge’s function to determine whether the evidence in its entirety would rationally support a verdict for the plaintiff, assuming that the jury took, as it would be entitled to take, a view of the evidence most favorable to the plaintiff. If there were a bright line dividing negligence from non-negligence, there would be no problem. Only an incompetent or a wilful judge would take a case from the jury when the issue should be left to the jury. But since questions of negligence are questions of degree, often very nice differences of degree, judges of competence and conscience have in the past, and will in the future, disagree whether proof in a case is sufficient to demand submission to the jury. The fact that a third court thinks there was enough to leave the case to the jury does not indicate that the other two courts were unmindful of the jury’s function. The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.”

The eases cited in the majority opinion do not, in my mind, sustain the conclusion reached by the court. They hold an employer must exercise ordinary care to furnish employees a safe place to work, but so do thousands of other cases. But, in practically every case, the facts and circumstances are such that any reasonable person could find ordinary care was not used by the employer to furnish a safe place. I briefly refer to the facts and opinions of the cited cases to illustrate this point.

In Ellis v. Union Pacific R. Co., 329 U. S. 649, 67 S. Ct. 598, 600, 91 L. Ed. 572, the employee was pinned between a car and a building. The following excerpt shows why that court concluded there were facts justifying the submission of the issues to a jury.

“From this evidence the jury might have concluded that petitioner had a safe place to work but elected to choose a dangerous one, that any duty of warning was fully discharged by the presence of the sign, and that the engineer had not been negligent in any way. In that view of the case the accident would be an unforseeable, freak event or one caused solely by petitioner’s own negligence. On the other hand, it would not have been unreasonable for the triers of fact to have inferred that it was proper and usual procedure to work on the right side of the engine, that the hazard was not readily apparent and was almost in the nature of a trap, that while the sign was placed so as to be readily visible from a train, it was insufficient warning to a man on the ground, and that consequently petitioner was not furnished a safe place to work. And the jury might have thought that the engineer was negligent in failing to perceive the peril in time to avert the accident by a warning or by stopping the engine. Again, both parties might have been found negligent, in which event it would have been the duty of the jury, as the trial judge charged, to render a verdict based upon the damages caused by respondent’s negligence diminished by the proportion of negligence attributable to petitioner.”

In the case of Schlueter v. East St. Louis Connecting Ry. Co., 316 Mo. 1266, 296 S. W. 105, 112, the employee was injured by the derailment of an engine tender, upon the footboard of which he was riding in the performance of his duties as a switchman. The evidence disclosed that the track and road-bed were old, out of repair and that the rails were different sizes and lengths and were not securely joined. The road-bed at the point of the accident did not belong to the employer, but had been and was being used by it in connection with its railroad business. The court in that case based its decision upon both actual and constructive knowledge of the defective condition. I believe the following paragraph succinctly states the principle announced in that case:

“It seems, however, to be the chief contention of appellant that there is no evidence herein that appellant, or its trainmaster, Boyer, who directed the switching crew in question, had knowledge of the defective condition of the track prior to the derailment. As we have said, there is substantial evidence in the record that the defective condition of track No. 1 had existed for at least a year prior to the derailment, and that several engineers in appellant’s employment had observed the condition of the track, and that the engines leaned, or swayed, in passing over the track at or near the point of derailment. Appellant’s trainmaster also testified that he was frequently in the Dupo switchyard in the performance of his regular duties and that he had occasion to see the various tracks in the yard prior to the derailment. It seems to us that the jury might reasonably and properly have drawn the inference from such evidence that appellant had actual notice or knowledge of the defective condition of the track in question prior to the time when respondent was directed by the trainmaster to use the same. But, assuming that the evidence is insufficient to show actual knowledge of the defective condition of track No. 1 by the appellant and its trainmaster, yet we think that the evidence is sufficient to establish constructive knowledge of such condition on their part; or, otherwise expressed, we think that the evidence establishes the fact that appellant and its trainmaster should, or could, by the exercise of ordinary care, have known of such defective condition of the track.”

In Terminal R. Ass’n of St. Louis v. Fitzjohn, 8 Cir., 165 F. 2d 473, the court was dealing with the following factual situation: The employer contracted to furnish the switch crew to operate equipment at an ordnance plant owned by the United States Government. The employee was injured when he came in contact with light standards which were mounted on a concrete ramp. The clearance between these standards and a box car moving on the track was six inches, wholly inadequate to permit a person riding on the side ladder to clear. The condition had existed for some considerable time before the accident. The employees were required to ride the trains night and day and it was during darkness that plaintiff was injured. It is not difficult to arrive at a conclusion that the employer could reasonably foresee injury to its employees. The court merely announced the general rule previously quoted in this opinion.

The Circuit Court of Appeals, First Circuit, in the case of Boston & M. R. R. v. Meech, 156 F. 2d 109, affirmed the verdict for an employee who was injured while working as a stripper. His work was performed on a structure known as a “washstand.” The distance from the inner edges of the platform to the nearest rail was 1.6 feet and the locomotive which struck the injured person overhung both the rails and the edge of the platform. The Court of Appeals held there was sufficient evidence to raise a jury question on two counts. First, that the engine operator was negligent in not observing the employee; and the second, that the location of the platform and its proximity to the track made it an unsafe place to work.

There are cases which deal with temporary hazardous conditions, and I believe they announce the principle we should adopt. I refer to two, namely, Texarkana & Ft. S. Ry. Co. v. La Velle, Tex. Civ. App., 260 S. W. 248, 251, and Waller v. Northern Pacific Terminal Company of Oregon, 178 Or. 274, 166 P. 2d 488, certiorari denied 329 U. S. 742, 67 S. Ct. 45, 91 L. Ed. 640.

In the case of Texarkana & Ft. S. Ry. Co. v. La Velle, supra, the plaintiff, employed as a switchman by defendant railroad, was injured by being pressed between a cut of cars and a skid pole, which had been left too close to the tracks by employees of a private manufacturing company. The Court of Civil Appeals of Texas reversed a judgment for the plaintiff, saying:

“* * * It is a plain and well-established rule of law that a railway company, like any other, is not liable for injuries caused solely by the act of strangers putting a temporary obstruction on or dangerously near its premises, unless it also is guilty of negligence. [Missouri, K. & T.] Railway Co. v. Jones, 103 Tex. 187, 125 S. W. 309.

“Under the circumstances in this case, though, the mere fact alone that on this occasion the skid pole protruded to the extent it did at the time of the injury would not constitute negligence per se, nor be sufficient to- impute negligence to appellant. The fact that it protruded at the time of the injury is legally- only a circumstance from which negligence may be found, provided under all the circumstances of the case the duty on the part of appellant arose to make inspection to see that it was in that position before the appellee, switched the cars to that spur track. In order to legally devolve the duty of in* spection in this particular instance to see whether or not the skid pole protruded near the car, there must affirmatively appear some circumstance suggestive to appellant of the probability that the Veneer Works’ employees would leave it in a position too near a passing car; for a duty to inspect does not arise where there are no circumstances suggestive of the probability of the occurrence, quite recent in time, as here. For instance, if a like occurrence had not happened before, and the employees of the Veneer Works customarily placed the skid poles at a place free of obstruction to the track, and the track was only used for the single purpose of delivering freight to the one industrial plant, then in such facts the railway company would have no reasonable ground to believe or anticipate that the employees of the Veneer Works would do the act complained of on this exceptional occasion and at this time. The appellant then could reasonably rely on the employees of the Veneer Works removing the skid poles, as they customarily did, by the time they quit work for the day on January 14th.”

In Waller v. Northern Pacific Terminal Company of Oregon, supra, plaintiff was injured when his foot slipped on a stick as he attempted to board a moving train. He was foreman on a switching screw and the evidence showed that the defendant railroad used the yards for switching operations only, and that the sticks and other trash had been dropped in the yards by others who used the yards. The court held that there was no issue for the jury, and that the railroad had exercised reasonable care in furnishing a safe place to work. The court said:

“Under these circumstances we think it was incumbent upon the plaintiff to show that the specific condition alleged to have caused the plaintiff’s fall had existed for a sufficient period of time to charge the defendant with constructive notice thereof, or else to show that the general system of inspection throughout the yards and under all of the circumstances was insufficient and that additional inspection, if reasonably required, would probably have discovered the object. This the plaintiff failed to do.” [178 Or. 274, 166 P. 2d 499.]

It may be, as contended by some, that the United States Supreme Court has discarded all previous concepts of the law of negligence, but I am not yet convinced such is the case. Certainly, no decision can be cited which overrules the legal truism that an employee’s right of action is bottomed on the negligent acts of his employer. The latest statement made by that court that I can find is contained in Moore v. Chesapeake & Ohio Railway Co., 340 U. S. 573, 71 S. Ct. 428, 429. Therein that court stated:

“To recover under the Act, it was incumbent upon petitioner to prove negligence of respondent which caused the fatal accident. Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 32, 64 S. Ct. 409, 411, 88 L. Ed. 620 [623].”

If we start from the foregoing premise, wherein did this defendant fail to use ordinary care to furnish a reasonably safe place to work? There are ordinary risks attendant upon any employment and the mere fact that plaintiff was injured does not meet the burden of proof. He alleges, and this court finds, that by the exercise of ordinary care the defendant could or should have known that the baggage track was an unsafe place for its employees to work. There is nothing structurally wrong with the track and nothing inherently dangerous in the physical layout of the yard. The hazard which plaintiff complains about was created by the acts of third parties, not by the acts of the defendant. From what facts can it be reasoned the defendant could foresee that vehicles would be left unattended over the clearance line, and, that the one employee who was charged with the duty to stop the equipment, if any hazards were present, would fail in his duty ? Undoubtedly, any moving vehicle can be placed near a rail. But, is the mere presence of movable objects afoul of the track on one occasion sufficient to charge an employer with knowledge that he is furnishing an unsafe place to work? Can the condition be momentary, fleeting and temporary and yet the defendant negligent because of his failure to discover and remedy it? Does momentary thoughtlessness on the part of third persons in a terminal yard charge all employers using the yard with furnishing an unsafe place to work ? I would believe not. Rather, I would believe that only those conditions which the employer knows, or through the exercise of ordinary care should have discovered, might endanger employees would charge him with negligence. Are we to say that the jury can hold a railroad company liable because a reasonable employer in that industry should anticipate that third parties might be negligent ? If we can say this, then I believe this court is casting aside the concept that negligence is the failure to do that which a reasonably prudent and careful person would do under like circumstances and is substituting therefor the principle that an employer must insure the safety of all employees.

What better precaution against injury to members of the crew could the defendant railroad devise than placing the “field man” on the lead car to watch for and timely warn of the presence of obstacles. Certainly it could be said in this case that the trial court was correct in holding that the railroad company as a matter of law exercised reasonable care in respect to the situation here presented.

LATIMER, J., concurs in the opinion of WOLFE, C. J.