Gardstrom v. L. E. White Lumber Co.

This action was commenced by plaintiff as administratrix on behalf of and for the benefit of the heirs of Werner Gardstrom, who, it is alleged, was killed while in defendant’s employment and through its negligence. At the close of plaintiff’s testimony the court granted defendant’s motion for a nonsuit made on the following grounds: “1. That none of the allegations of the complaint charging the defendant with negligence have been proven; 2. That the evidence that has been introduced regardless of the allegations of the complaint is totally insufficient to sustain any charge of negligence or to sustain a verdict; 3. Upon the ground that if the evidence shows any negligence whatever it was the negligence of a fellow employee of the deceased and therefore a verdict against the plaintiff (defendant?) would not be sustained thereon. ’ ’ A motion for a new trial was denied and defendant had judgment dismissing the action and for its costs. Plaintiff appeals from the judgment and order denying her motion for a new trial.

It is alleged in the complaint that, on May 28, 1910, plaintiff’s intestate was in the employ of defendant in the capacity of brakeman on a logging train operated in Mendocino County and, while so employed, “said train was operated by an engine which was not reasonably fit for the use in which it was employed, and . . . said engine was defective in this: The frame thereof was sprung to such an extent as to cause the same to be not reasonably fit for the use in which it was employed”; that defendant “did not exercise ordinary care to provide a reasonably safe engine for the purpose aforesaid, nor to keep the same in a reasonably safe condition”; that defendant did not exercise ordinary care to furnish deceased & reasonably

The answer denies the material averments of the complaint and states that “the alleged death of Werner Gardstrom by reason of the accident referred to in the complaint was due to and caused by said Werner Gardstrom’s own carelessness and negligence directly and proximately contributing thereto,” and that if the death of said Gardstrom “was due to the carelessness or negligence on the part of any other than the said Gardstrom, it was due to and caused by the carelessness of some other person or persons in the same general business in which said Gardstrom was employed and engaged in the same department of labor”; and that “the dangers to which plaintiff alleged Werner Gardstrom was subject were risks incident to the work” he “was employed to perform” and he “assumed such risks in accepting and continuing in said employment.”

There was no evidence touching the condition of the roadbed as -a contributing cause to the accident. The evidence was addressed to the condition of the engine as showing its unfitness for the uses being made of it and hence rendering it an unsafe appliance with which to work. Reading the complaint one would receive the impression that the injury was received while the deceased and the crew of the logging train referred to were operating “said logging train and said engine from said woods to the said sawmill over said roadbed, ’ ’ whereas, the accident did not happen while a logging train was being

There were two trains being operated by defendant at this time—one a gravel train with Charles A. Brown as engineer, the other a logging train, Eric West as engineer, engaged in hauling logs from Camp 7 to Camp 2, eight or ten miles apart. At Camp 2 it “switched off and took empties and another train took the logs in.” On the day of the accident West returned with these “empties” with the rear end of his engine in front of the train, thus backing along the road. The crew consisted of West, engineer-; Harry Bridgeford, fireman; Werner Gardstrom (deceased), head brakeman, and William Briscoe, second brakeman. What Gardstrom’s duties were does not appear except as it may be inferred from his position as brakeman. On the day of the accident, between ten and eleven o’clock of the forenoon, as West’s train was moving along between the two camps, Brown’s train coming from the opposite direction, his locomotive being in front, collided with the rear end of West’s engine, at a point on the road a short distance from a place called Salsig where defendant had' a store, and about twenty-seven miles from Greenwood where the defendant’s repair shops were located. Engineer Brown testified: “About ten o’clock in the morning, I was going towards Greenwood, and my position on my train was engineer. I was coming down the grade from the side track, and the train on which West was engineer was coming' up. His engine was backing up where there were two turns with about fifty yards between them. As he came around one I came around the other” and the engines collided. “After the collision, Mr. Hendrickson was notified and came there while we were fixing the wreck. Hendrickson’s position with the company was woods boss. So far as I know, in the performance of duty Mr. Hendrickson got orders from the superintendent, and he had his orders for the train gang or for the woods, the woods crew, he got them from the superintendent. ’ ’ He testified that after the track was cleaned up both trains went to the store, one remaining on the main track and the other went to a side track. “As soon as we had done that, we all went back to the cook house for dinner. In order to do

It appeared that after cleaning up the wreck, which was not a bad one, Brown and West moved their trains to Salsig, a short distance, where the store was. This was about half past twelve o’clock. Both crews then got aboard of West’s engine and went back to the cook house for dinner, which was in an opposite direction from Greenwood. West testified: “After the

This is substantially all the evidence that appears to have any bearing upon the questions presented, stated more fully, perhaps, than was necessary. The rule governing appellate courts in reviewing the action of trial courts in granting non-suits is well settled. “The motion .for nonsuit admits the truth of plaintiff’s evidence, and every inference of fact that can be legitimately drawn therefrom; and upon such motion, the evidence should be interpreted most strongly against the defendant. If there is any evidence tending to sustain plaintiff’s action, the nonsuit should be denied, without passing upon the sufficiency of such evidence.” (Kramm v. Stockton Elec. Ry. Co., 3 Cal. App. 606 , 609, [ 86 Pac. 738 , 739].) In Herbert v. Southern Pac. Co., 121 Cal. 227 , [ 53 Pac. 651 ], the court said: “The rule is, that negligence is a question of fact .for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence.” (See Hoff v. Los Angeles Pac. Co., 158 Cal. 596 , [ 112 Pac. 53 ]; Zibbell v. Southern Pac. Co., 160 Cal. 237 , [ 116 Pac. 513 ].)

It must be conceded that West’s engine is shown to have been put out of commission—i. e., it was no longer in condition for the service in which it was used. West so reported to his employer and so testified, and the order by Hendrickson to run it to the shops for repairs at Greenwood implies as much. What was done? Both crews of the two trains— Brown’s and West’s got aboard of this crippled engine and went in another direction to the cook house for dinner. No direction was given them to do this. No duty and no necessity required it of them. Only West and his fireman had any office to perform in operating the engine, or were required in taking'the engine to Greenwood. Its condition was known to all of them—Gardstrom with the rest. It does not appear who suggested going back to, the cook house. Apparently it was the spontaneous and voluntary act of each one of the men, the object being, a natural one, to assuage their hunger. Be-

Of the duty of the employer under circumstances such as appear here, the court, in Brown v. Chicago etc. R. R. Co., 59 Kan. 70 , [ 52 Pac. 65 ], very properly said: “All know that cars are frequently broken and injured by use and when that occurs both duty and interest require that the company shall cause them to be repaired and made reasonably safe-for use. To accomplish this it is necessary that they should be removed to the repair shops and it is necessary that employees shall assist in moving them. As a general rule an employee who handles such cars with knowledge of the defects will be held to have assumed the risks incident to such work. One who is employed to handle broken and disabled ears cannot shut his eyes to the hazardous character of the service nor invoke the rule which requires the company to furnish safe machinery and appliances. In qrder to conform to the requirement of that rule the company must bring in broken and disabled ears and repair them.”

And the employee is charged with the assumption of the risk in operating such ears although -he may not have knowledge of the precise nature of the defect in them. (Kelley v. Chicago etc. R. R. Co., 35 Minn. 490 , [ 29 N. W. 173 ].)

Appellant cites Southern Ry. Co. v. Hart (Ky.), 64 S. W. 650 . In that case the court said: “there can be no question that where one is employed to handle damaged cars there is no duty imposed upon his employer to see that the car is safe, and he assumes the risks and hazard which are incident to such employment; and such an employee stands on a different ground from one whose master furnishes dangerous or defective tools to be used in his work without notice to his employee. In such a ease the usual and ordinary risk is assumed by the servant as within the terms of his contract. The rule in a case of this character is well stated in the case of Chesa

The plaintiff prevailed in the case cited and the Hennessey case was distinguished upon obvious grounds, but the doctrine of the Hennessey case was approved.

Respondent makes the point that the evidence discloses an entirely different case from that alleged in the complaint and that plaintiff “must recover, if at all, upon the cause of action set out in his complaint, and not upon some other which may be developed by the proofs,” and that “a variance between the pleadings and the proof may be taken advantage of . . . by motion for a nonsuit, and the defendant is not precluded from moving for a nonsuit by reason of his failure to object to the admissibility of the evidence, ’ ’ citing Elmore v. Elmore, 114 Cal. 516 , [ 46 Pac. 458 ], and other cases. It must be admitted that the complaint seems to have been framed with a view to a different state of facts from that developed by the evidence.

Appellant states in her brief: “The theory of plaintiff’s case is that the furnishing and keeping in repair of the engine was an absolute duty which defendant owed to deceased; that this duty could not be delegated to another; but that if so shifted, that other became a vice-principal, for whose dereliction the master is liable. ’ ’ Support is sought by reference to cases announcing the familiar rule that “it is the positive duty of the master to provide his servants with reasonably safe instrumentalities . . . wherewith to do his work.” (26 Cyc. 1097.) It is quite clear that this doctrine has no application in the present case. At the time the accident happened the engine was not being used for the purposes for which it was supplied by the master and Gardstrom was not engaged in any line of duty. The engine was in fact out of use and- ordered to the shops for repair and had the accident happened while going to the shops the doctrine of the eases relied on by appellant, as we have seen, would have had no application. (Chesapeake etc. R. R. Co. v. Hennessey, 96 Fed. 713 , [ 38 C. C. A. 307 ].) Nor can it be said that engineer West, under the circumstances, stood toward Gardstrom in the relation of vice-principal.

Giving the evidence all the force favorable to plaintiff of which it is reasonably susceptible, as we must under the rule

The judgment and order are affirmed.

Lennon, P. J., and Hall, J., concurred.