DocketNumber： No. 36064
Judges： Arnold, Blackbird, Corn, Halley, Jackson, Johnson, Williams
Filed Date： 4/19/1955
Status： Precedential
Modified Date： 10/19/2024
George Washington Blanton sued the Gulf, Colorado and Santa Fe Railway Company to recover damages for injuries received while engaged in construction work on defendant’s tracks and right of way on its main line south of Cleburne, Texas.
It is stipulated that plaintiff’s action is governed by the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.
The only assignment of error presented by defendant (plaintiff in error) is that plaintiff’s evidence was -wholly insufficient to constitute a prima facie case, and that the trial court erred in overruling defendant’s demurrer to the evidence, and defendant’s" motion for a directed verdict. The defendant offered no testimony but stood upon its demurrer to plaintiff’s evidence and its motion for a directed verdict.
The record discloses that plaintiff had worked for the defendant for approximately six years and during this period was largely employed as a common laborer in construction work. Sometime prior to July 28, 1952, the date of his injury, the plaintiff had been classified as a machine operator and was in charge of a power-jack used to lift rails. He had never been assigned to operate the machine referred to as the cribber.
The cribber is a heavy machine, designed to remove dirt and gravel from between railway ties upon the roadbed. Its wheels fit the rails of the track and it is moved along the track under its own power. It has rotating blades which remove the dirt and chat between the ties. These blades are located on the front end of the cribber
The plaintiff testified that on July 28, 1952, the defendant’s foreman, Larson, told the plaintiff- that he had -to go after some pins for the cribber machine and- instructed plaintiff to see after the machines and get them on the passing track in time to let the Santa Fe Chief- pass as it proceeded North.' That after plaintiff had instructed a fellow employee to remove an accumulation of chat between two ties he walked up to the cribber which was being operated by Taylor.
Plaintiff further testified that he noticed that the rotary diggers were moving too slow. ■ He looked into the machine and discovered oil pouring out at a union. He concluded that this loss of oil was reducing the oil pressure in the hydraulic line which operates the rotors and motioned for defendant’s employee, Evans, who was standing in front of the cribber to come to him.
He further testified that when Evans' came around he told Evans to fix the union when, the cribber was moved on the siding. That the cribber is a noisy machine when in operation and plaintiff pointed out the oil leak to Evans. As he did so the arm of the machine was raised by Taylor and plaintiff’s hand was cut off above the wrist. < .
The evidence shows that the arm that controls the diggers is down when-the machine is digging and the arm has to be raised when the machine is to be moved, or if the rotors are to lose contact with the ground between the ties.
Plaintiff testified that immediately before he was injured hé was standing so close to Taylor that he could have reached over and touched him. He believed that Taylor could have reached down and touched him.
The evidence -shows that the upper part of plaintiff’s body was in plain sight of Taylor while Taylor operated the machine.
On direct examination the plaintiff gave an' account of his own movements and Taylor’s movements so that the judges of the facts (the jury) might be able to reach conclusions as to who caused plaintiff’s injuries. On cross-examination he was asked to determine the .cause of his injuries. While his conclusions in this connection would invade the province -of the jury, there being no objection, he testified as follows:
“Q. And actually, what caused you to get your hand caught, Mr. Blanton, was the fact that you didn’t realize that you were as close to the machine as you were when you started pointing? A. Yes, that would be right. It naturally would. I just dropped it like .that in there.” * * *
“Q. *• * * It was just your own carelessness in not realizing how close you were to the machine. That is right, isn’t it? A. Yes, that would be right.”
The burden of deciding the question of proximate cause is upon the jury. Chicago, R. I. & P. R. Co. v. McCleary, 175 Okl. 347, 53 P.2d 555.
By their verdict the jury in effect said that Taylor was negligent in raising the arm of the machine while plaintiff was so close to the machine and that plaintiff’s injury resulted in part from Taylor’s negligence.
A demurrer to plaintiff’s evidence admits the truth of all the evidence fa
Defendant’s demurrer to plaintiff’s evidence presents no question as to plaintiff’s negligence, as the sole question is whether the evidence in any reasonable inference discloses the defendant negligent and that such negligence was the proximate cause of plaintiff’s injury. Breno v. Weaver, 208 Okl. 14, 252 P.2d 487.
These rules are likewise applicable upon defendant’s motion for a directed verdict.
It is the settled rule that if there is any evidence, including reasonable inferences from which the jury could reasonably find that the plaintiff’s allegations of negligence are proven, the judgment thereon will not be reversed. Reed v. Scott, 50 Okl. 757, 151 P. 484.
The Federal Employers’ Liability Act, Title 45, § 51 of the U. S. Code insofar as here applicable provides:
“Every * * * railroad * * * shall be liable in damages * * * for such injury or death 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, engines, appliances, machinery, track, roadbed, works, boats, wharves^ or other equipment.”
The rights created by the Federal Employers’ Liability Act are federal rights protected by federal rather than local rules of law. Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.
The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from un-controverted facts, are questions for the jury. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572.
As the standard of liability is negligence, the question is what a reasonable and prudent person would have done under the circumstances. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497.
Where there is a debatable issue "on which fair-minded men might differ, it becomes a question for the jury. Bailey v. Central Vermont Railway, Inc., supra.
If plaintiff’s proof sustains the conclusion that plaintiff’s injury resulted in whole or in part from the negligence of the employees of the defendant, then the fact of plaintiff’s negligence, if any, only goes to the amount of the recovery. The damages, as the court properly instructed, shall be diminished by the jury in proportion to the amount of negligence attributable to plaintiff. See Title 45 U.S.C.A. § 53. Wilkerson v. McCarthy, supra.
We are unable to say as a matter of law under all the evidence in this case that there was no negligence on the part of the defendant.
Finding no substantial error in the record, the judgment of the trial court is affirmed.