Coray v. Southern Pac. Co.

The trial court directed a verdict against the plaintiff administrator in an action against the railroad for alleged wrongful death, and plaintiff appeals. There is no serious dispute as to the facts. Plaintiff contends that the death resulted from negligence in alleged violation of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., while respondent contends that the decedent was furnished with a safe appliance and mechanism, and that the death of decedent was proximately caused solely by his own heedless conduct in running into the caboose of a freight train which had come to an emergency stop.

On May 24, 1944, decedent and one Lynch waited for eastbound freight-train No. 1/582 to pass, which was required to take the next siding east of Newfoundland to permit west bound passenger train 587 to go through on the main line. Lucas was in charge of a track car and he had some pay checks to take to the men at the next station. Lucas and Lynch pushed the motor track car onto the track behind the freight train and proceeded to follow the train which was scheduled to go onto the next siding. There was a company rule in effect which required operators of track cars to keep such cars at least 400 feet from the rear of the train. Such track car could be operated at a speed of not to exceed 35 miles per hour and at such speed could be stopped within a distance of 100 feet. When the track car was started, it was about 900 to 1200 feet behind the freight train. Both the freight train and the track car were traveling toward the approaching passenger train. Decedent operated the track car, and both he and Lynch faced the west instead of the direction toward which they were moving. With their backs toward the east they in effect were traveling backwards.

When the freight train was about 3/4 of a mile east of Lemay, Utah, it came to an emergency stop before it reached the siding. The train being equipped with airbrakes, came to a sudden but easy stop by reason of the fact that the triple union nut became disconnected from the triple-valve on the 60th car from the engine, which disconnection was due to the threads on the triple-valve being worn. As a result of the triple union nut becoming disconnected from the triple-valve, it permitted the air to escape from the airline and to set the brakes in emergency.

There was no jerking, and it required about 1350 to 1800 feet distance to complete the stop. The braking system is so designed that such event will occur when the air is released, air-pressure being essential to release the brakes and to keep them released. The conductor noticed that there was an emergency stop, and one witness stated that it appeared that the engineer had decided that he could not make it to the siding. When attention was called to the air-gauge, it was noted that it registered zero, which meant that the air had been released. Just at that moment, one of the men in the caboose observed decedent and Lynch on the track car with their backs to the train which they were approaching, about three car lengths or about 150 feet to the rear. Some attempts were made to signal to these men on the track car, but such efforts were in vain in consequence of the failure of the men on the track car to face the direction in which they were moving and also by reason of the noise of the motor. The track car crashed into the rear of the caboose, throwing off both men and in consequence of such collision decedent was killed. Lynch received injuries, but they were not fatal.

At the outset, we are confronted with a motion on behalf of respondent to strike the bill of exceptions on the ground that it was not settled in time, and also, a 1, 2 motion to dismiss the appeal, inasmuch as it was filed more than 90 days after entry of judgment.

The judgment on the verdict was entered April 6, 1946. Notice of appeal was served on July 3, 1946, but it was not filed with the clerk until July 6th, which was 91 days after entry of judgment. However, there appears in the record an order dated July 1, 1946, denying a motion for new trial. That a motion for a new trial, seasonably made, suspends the finality of a judgment until the court's ruling thereon (Fuller v. Ferrin etal., 51 Utah 105, 168 P. 1179, and cases there cited), is conceded by respondent. Likewise, the statutory time allowed for settlement of a bill of exceptions, in cases in which a motion for a new trial is interposed, runs from notice of the ruling on such motion. Sec. 104-39-4, U.C.A. 1943.

But respondent apparently takes the position that the record on appeal must affirmatively show that the motion for a new trial was made within the time allowed by statute or such extensions thereof as may have been granted by the trial court. The papers filed in this court contained a motion by 3-6 appellant to be relieved of his default in failing to timely serve notice of motion for a new trial, together with supporting affidavits and an order of the trial court granting the relief prayed. These were not incorporated in the bill of exceptions and respondent contends that they are not included in the judgment roll. Appellant argues that they are. Without discussing the cases cited by respondent in support of its contention, we shall assume that they are not and are hence not before us on appeal.

We have, therefore, a record which discloses the date, indicated hereinabove, upon which the motion for a new trial was overruled, the order overruling such motion being a part of the judgment roll, and which reveals that the appeal was taken and the bill of exceptions served within the time allowed by statute. Was it incumbent upon appellant to show by the record that the motion so overruled was timely made? We think not. If the contrary be held, then in the case of every appeal which an appellant desires to predicate on the judgment roll without an extended bill of exceptions, it would be necessary to settle a bill containing merely the date upon which the motion for a new trial was made. The statutes do not so provide, nor do principles of appellate procedure so dictate. True, this court will sua sponte take cognizance of its lack of jurisdiction. Furthermore, the record before us must show jurisdiction. The record does so show when it reveals that notice of appeal was served and filed within 90 days after the date of an order overruling a motion for a new trial. This prima facie showing of jurisdiction may, of course, be negatived by other parts of the record. Thus, if the bill of exceptions contains the motion for a new trial exhibiting that it was not timely filed, lack of jurisdiction is shown, unless there is also evidenced by such record a timely extension of time for filing the motion or an order relieving appellant of his default in failing to move in time.

The cases cited by respondent are not to the contrary. InProgress Spinning Knitting Co. v. Dixie Fire Ins. Co.,43 Utah 303, 134 P. 1166, the record affirmatively showed that the notice of intention to move for a new trial was given twenty days after judgment and there was no claim that appellant had been relieved from his default in failing to file the same in time. Under those circumstances we held that we could not assume that appellant had been relieved from his default in the absence of a showing that the motion for a new trial was not in fact overruled because it was not filed in time. To the same effect is Felt v.Cook, 31 Utah 299, 87 P. 1092. In those cases the record disclosed the time when notice of intention to move for new trial was served. In Warnock Ins. Agency v. Peterson Inv. Co.,35 Utah 542, 101 P. 699, the notice of appeal was served more than six months after judgment (the time then allowed for taking an appeal being six months). There, as here, the notice of intention to move for new trial, motion for new trial and order overruling the same were attached to the judgment roll, but not made a part of the bill of exceptions. At that time the statute did not make the order overruling the motion for new trial a part of the judgment roll. We held that the record respecting the motion for new trial was not a part of the judgment roll, and therefore not before us on appeal. Hence, we could not consider the same and the appeal was dismissed.

Respondent points out that appellant concedes in his brief that the notice of motion for a new trial was not served and filed within five days after entry of judgment. However, this concession is made as a preface to his argument that the motion to be relieved of default and the order made 7 pursuant thereto are properly before us in the judgment roll. The mere exhibition of these documents would reveal that the notice of motion for a new trial was not filed within five days after entry of judgment, but if they may not be considered for the purpose of showing the order relieving of default, because not properly a part of the record, neither may they be regarded to show the default itself. The concession in the argument made in effect in connection with the proffer of the documents in question should be disregarded as well as the documents themselves. The motion to dismiss the appeal and the motion to strike the bill of exceptions are denied.

We are next met by the contention of respondent, to the effect that since no exception was expressly taken to the order directing the verdict for defendant, the alleged error of the trial court in directing the verdict cannot be 8-10 reviewed by this court, citing Stewart v. Oregon ShortLine R. Co., 39 Utah 375, 117 P. 465. In that case plaintiff sought to recover damages for personal injuries and the court directed a verdict in favor of the defendant. No exception was expressly taken to the ruling, but appellant contended that under the statute then in effect pertaining to exceptions, such a ruling was deemed excepted to by statute. This court construed sec. 3283, C.L. 1907, which was subsequent amendments is now sec. 104-39-2, U.C.A. 1943. Such section, with the amendments made since 1907 italicized, reads as follows:

"The verdict of the jury, the final decision in an action or proceding, an interlocutory order or decision finally determining the rights of the parties, or some of them, an order or decision from which an appeal may be taken, an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, or refusing a continuance, an order granting or denying a motion for nonsuit, an order made upon ex parte application, an order or decision made in the absence of a party, and all rulings on objectionsto, or motions to strike out, evidence, are deemed excepted to."

In the Stewart case this court held that inasmuch as the statute as it then existed was identical with sec. 647 of the California Code of Civil Procedure, and the Supreme Court of that state had held that a motion for nonsuit will not be reviewed where no exception was taken to the ruling, a motion for a directed verdict should be considered in the same category although the effect of granting such motion is to terminate the action. This court followed the rule that an order granting nonsuit will not be reviewed unless an exception is taken, until the statute was amended to specify that an order granting or denying a motion for nonsuit is deemed excepted to. Moapa GardenCo. v. San Pedro, L.A. S.L.R. Co., 45 Utah 141, 143 P. 218, and Badertscher v. Independent Ice Co., 55 Utah 100,184 P. 181.

In Frank v. Myers, 60 P.2d 144, 145 (hearing denied by Supreme Court), 16 Cal. App. 2d 16, in overruling the contention of respondent that an order of the trial court directing a verdict is not reviewable absent an express exception thereto, the appellate court construed such order as an instruction to which, under the California code, an exception is deemed taken. A further reason for the ruling of the appellate court is thus expressed:

"Moreover, the record discloses that the instruction to the jury to direct a verdict for defendant was given ``over the objections' of plaintiff. Section 648 of the Code of Civil Procedure provides that ``no particular form of exception is required,' and section 646 of the Code of Civil Procedure provides that ``an exception is an objection upon a matter of law to a decision made, either before or after judgment'."

While it is true in a sense that the motion for a directed verdict is in the nature of a request for instruction, and that in some instances there is a request for a directed verdict included in proposed instructions, the charge to the jury generally is designed to guide the jury in its deliberations. When the court directs a verdict, it takes the case away from the jury so that the court makes the decision instead of the jury. The jury thereby is shorn of its function as trier of the facts.

We believe that the decision in Stewart v. Oregon ShortLine R. Co., supra, examined in the light of the practical operation of court procedure, is illogical. The holding in that case seems to have failed to take into consideration the language of the statute which grants an automatical exception to

"the final decision in an action or proceedings; an interlocutory order or decision finally determining the rights of the parties, or some of them." [39 Utah 375, 117 P. 466.]

An order directing a verdict leaves nothing to the discretion of the jury and finally disposes of the case, except for the formal entry of judgment on the verdict, as conceded in the Stewart case. It would be difficult to conceive of a situation in which an order is made which finally determines the rights of the parties if an order directing a verdict does not do so. If the court directs a verdict when the case should be presented to the jury, the jurors are deprived of serving as triers of the fact.

Since we are dealing with a procedural rule rather than one of substantive law, we are less reluctant to overrule Stewart v.Oregon Short Line R. Co., supra, and to hold that the statute gives an automatic exception to an order or ruling of the court directing a verdict, since the order or ruling constitutes a "decision finally determining the rights of the parties."

In addition to what has been said, there is another reason why a party should not be required to take an express exception to a directed verdict. The purpose of an exception is to furnish a basis for review, and also to first give the trial court opportunity to correct error. When 11 a directed verdict is ordered, it is almost always, as the record discloses it was in this case, after argument, when opportunity has been given to determine the matter with deliberation. The party against whom the verdict is directed has voiced his objection to the order requested.

As triers of the facts, jurors have the right to resolve conflicts in evidence, and to draw reasonable inferences from the facts so found. Jurors sitting as triers of the fact are not empowered to decide legal questions, nor draw any conclusions of law therefrom except as guided by the 12 instructions of the court. If there is no dispute as to the facts, there is no occasion to instruct the jury, for the jurors have no conflict in evidence to determine, and no ultimate facts to find. The only function which would be left to the jury, if the facts were undisputed, and if the facts spelled out liability on the part of the defendant, would be a determination of the amount of the damages within the limits permitted by the facts.

Proceeding to the merits, the uncontroverted evidence set out hereinabove, shows a violation of the Safety Appliance Act by defendant. A violation of such act imposes liability upon a carrier for any injury to an employee caused "in whole or in part" by such violation. 45 U.S.C.A. § 51. 13Chicago, B. Q. Ry. Co. v. United States,220 U.S. 559, 31 S. Ct. 612, 55 L. Ed. 582; St. Louis Iron Mountain Southern Ry. Co. v. Taylor, 210 U.S. 281, 28 S. Ct. 616,52 L. Ed. 1061; and Eker v. Pettibone, 7 Cir., 110 F.2d 451, and cases cited. We are thus confronted immediately with the ultimate question presented on the merits: Was the emergency stop caused by the disconnection of the triple-valve on the car in the manner described a "cause," in whole or in part, of the death of plaintiff's intestate?

The "cause" must, of course, be the legal cause, in order to be the basis of recovery. To show merely that the injury would not have occurred had there been no 14 violation of the act, is not the equivalent of showing that the violation was the cause thereof.

"In order to be the legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent * * *. The negligence must also be a substantial factor as well as an actual factor in bringing about the plaintiff's harm. The word ``substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility, rather than in the so-called ``philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ``philosophic sense', yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes." Restatement of the Law of Torts, Sec. 431, Comment (a).

Applying such criterion to the facts here presented, it is patent that the precise chain of events would have transpired had the train been intentionally brought to an emergency stop because of any of numerous conceivable exigencies. Indeed, had the train been slowed down to a few miles per hour, the 15 same result would, in all likelihood, have eventuated. The leak in the triple valve caused the train to stop, because as a safety device, it was designed to do just that. Hence, cases cited by appellant, such as Spokane I.E.R. Co. v. Campbell,241 U.S. 497, 36 S. Ct. 683, 60 L. Ed. 1125, wherein the jury concluded that the air brakes failed to so function as to stop the train, are not in point. The same may be said of Didinger v. Pennsylvania R.R., 6 Cir., 39 F.2d 798, and Lehigh ValleyR.R. v. Howell, 2 Cir., 6 F.2d 784.

This is not to say that a defect in the air line which causes the air to be released and the train to be brought to an emergency stop, may not be the legal cause of injuries resulting to an employee. Clearly it may. Thus, in Minneapolis St. LouisR.R. Co. v. Gotschall, 244 U.S. 66, 37 S. Ct. 598,61 L. Ed. 995, where a brakeman, walking along the top of a train of cars was thrown off and killed, when the train separated because of the opening of a coupler on one of the cars, resulting in an automatic setting of the emergency brakes and a sudden jerk; it could not well be said that the failure of the coupler was not the legal cause of the brakeman's death. Likewise, in the case of Chesapeake OhioRy. Co. v. Smith, 6 Cir., 42 F.2d 111, cited by appellant. There the train came to an emergency stop of such violence that it threw the brakeman through the panel of the front door of the caboose, and tore loose the furniture and stove. In such case the immediacy of the result leaves no room for speculation as to its cause.

But here, the stopping of the train — whether because of the defect in the triple valve, or a proper application of the braking power — was but the creation of a condition upon which the negligence of plaintiffs' intestate operated. It was not the legal cause of the result. Had the train been intentionally stopped because of a defective appliance, and the same eventuality had transpired, could it be found that the railroad's violation of the Safety Appliance Act was the legal cause of the death of plaintiff's intestate? Had the engineer of the train noticed a "hot box" and had brought the train to a stop in order to have it remedied, and the track car collided with the train, the defective journal box would have been the cause of the stop, but that cause produced a non-negligent condition; that is, a condition or situation which of itself violated no duty owing to the men on the following track car.

Viewed from the standpoint of negligence, the railroad company was not negligent toward plaintiff's intestate in failing to comply with the Safety Appliance Act relative to the locomotive furnished to the crew of the train. Viewed from the standpoint of causation: Looking back from the harm to the actor's negligent conduct, it appears highly extraordinary that the negligent conduct should have brought about the harm. See Restatement of the Law of Torts, Negligence, Sec. 433.

These last statements suggest the contrary approaches of Judge Cardoza and Judge Andrews in Palsgrof v. Long Island R. Co.,248 N.Y. 399, 162 N.E. 99, 59 A.L.R. 1253. Cardoza says the conduct of the defendant guards in pulling and pushing the passenger with the package, even if negligent in relation to the holder of the package, was not a wrong toward the plaintiff who was hit by the falling scales. Andrews says the act of the guards was a negligent act, that where there is an unreasonable act, and some right may be affected, there is negligence whether damage does or does not result. Hence, he says, the case must be resolved on the question of proximate causation, and concludes that it cannot be said as a matter of law that the action of the guards was not the proximate cause of plaintiff's injuries.

So in the instant case the question of liability may be considered as a question of whether there was any breach of duty on the part of the railroad to plaintiff's intestate, rather than a question of proximate cause. Did the defendant by furnishing the train crew with a train on which there was a leaky air valve, violate any duty it owed to Lynch and Lucus? The answer may be sought, we think, by inquiring what is the objective of the Safety Appliance Act which requires such a train to be equipped with proper air brakes which shall be at all times kept in working order? What is the purpose of such brakes? Solely, to stop the train. The provisions of the act are for the purpose of protecting those — the crew of the train and others, whose safety would be endangered if the train could not be stopped; not of protecting other employees because the train was stopped by the brakes.

Indeed, the very design of the required braking device emphasized — if emphasis were needed — the safety objective of the provision relative to brakes. Were air brakes systems so designed that air pressure would be required to apply the braking mechanism, a brake in the air line might 16, 17 not be discovered until an attempt to stop the train were made. But designed as they are to set the air brakes when the air is released, a leak in the air line stops the train and prevents it being moved until the leak is repaired. So in some sense the required safety device worked as it was designed to work — the leak stopped the train, thereby advising the crew of the condition. True, there was a defect in the air line — such a defect as would prevent the movement of the train. But the objective of the statute, insofar as brakes might be concerned, is not to protect employees from standing, but from moving trains.

Cases cited by appellant to the effect that the question of causation is one for the jury, where the evidence relative thereto is in conflict, or where different inferences may be drawn from established facts, are not helpful. See Tennant v.Peoria Pekin Union R. Co., 321 U.S. 29, 64 S. Ct. 409,88 L. Ed. 520. Here, there is no conflict in the evidence, nor, in our opinion, is there a basis for any inference upon the part of the jury that the violation of the Safety Appliance Act was a cause "in whole or in part" of the death of plaintiff's intestate.

"While the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, has relaxed the [common law proximate causation] rule, it has not so far done away with it as to hold an employer in damages if there is no other connection between the negligence and the injury than that if there had been no neglect, there would have been no injury, i.e., there must be more in the case than the negligence preceded the injury, and created a situation in which the accident, otherwise caused, resulted; there must be some degree of causation established before there may be a recovery." Southern Pacific Co. v. Ralston, 10 Cir.,67 F.2d 958, 959.

And see, Lang, Adm'x. v. New York Central R. Co.,255 U.S. 455, 41 S. Ct. 381, 65 L. Ed. 729.

From what has been said, it follows that the court below did not err in directing a verdict for defendant. The judgment is affirmed. Costs to respondent.

PRATT and WADE, JJ., concur.