Kreitzer v. Southern Pacific Co.

Plaintiff's decedent was employed by the defendant, on or about January 5, 1916, as night watchman to guard or watch the bridge or trestle belonging to defendant, crossing the Tuolumne River, at a point about one mile south of the station at the city of Modesto. He had discharged his duties as watchman for four or five days when, as is alleged in the first amended complaint, on January 11, 1916, between the hours of 6 P. M. and 12 o’clock midnight of said day, and while in the performance of his duties as such night watchman of said railroad bridge, he “was struck upon the head and body by one of the cars of a freight train which was crossing said railroad bridge” while traveling in a southerly direction, and was killed; that said railroad bridge “was and now is unsafe for any person to walk upon or travel over, due to the negligence of said defendant,” because of the manner in which it is constructed, describing it; that there was and is no place on said bridge ivhere deceased “could stand and remain at the same time that a train was crossing said bridge”; that the only places “in the nature of safety stations” were certain platforms about twenty-five yards apart “upon which a person could step from said bridge proper”; that barrels filled with water were placed on these platforms and “occupied most of the room or space upon each of said platforms”; that the spaces between said barrels and trains or ears passing over said bridge “were of such a narrow width that it was impossible for the said deceased at the time he was so struck by said car of said freight train, or at any other time, to remain on said platform while a train was passing”; that deceased was killed by said freight train while on the second one of said platforms

The answer is a specific denial of the averments of the complaint and alleges that the death of deceased “was caused solely by and through a risk assumed by him in the course of his employment,’’ and, furthermore, that his death “was caused’ by his own carelessness and negligence in failing to observe the approach of defendant’s train while said train was upon the bridge referred to in plaintiff’s complaint herein. ”

The cause was tried by the court with a jury and a verdict was awarded as follows: For the plaintiff in the sum of seven thousand five hundred dollars, apportioned as follows: To the widow, age fifty-two years, $3,750; to the child, Helen, age sixteen years, $227.30; 'to the child Mary, age fourteen years, $454.50; to the child, Clara, age seven years, $1,250.50, and to the child, William, age five years, $1,818.20. Judgment was accordingly entered. Defendant appeals from the judgment and from the order denying its motion for a new trial.

Witness Coburn held the position of track foreman on construction work for defendant and was foreman on the section including Modesto and the bridge or trestle where the accident occurred. He testified: “At the time that I arranged with decedent to go to work for the railroad company I went over to his house, I think, to see him. I told him I wanted to hire a man to protect the bridge, and I wanted to put a watchman on there at night; that we had found dynamite underneath it, and that I wanted to put a white man there that I could depend upon. I told him the wages would be two dollars a night, and that he would have to work from six to six. I told him to use no arms,—in case he met with some accident down there not to use any arms. He said, ‘All right, I will do it.’ I never saw him down there at work.”

Witness Wood, coroner and public administrator for Stanislaus County, arrived at the scene of the accident between 7 and 8 o’clock the morning "following the death of 'deceased. He testified: “I saw Mr. Kreitzer’s body on the railroad bridge, at the end toward Modesto, on the left-hand side or east side of the bridge, the up-river side. The body was between the end of the timber and a water barrel. It ufas between two hundred and three hundred feet from the west (north) end of the bridge, and wedged in between the end of the timbers that projected out under the track and the water barrel that was resting on the extreme end of the timber, wedged in between the end of this timber and the water barrel. It was sitting in a crouched position, his feet drawn up under him and his head was leaning to the—toward the south, toward the river; that is toward the south. I took the body out and took it to my place of business. I found marks or braises on the right-hand side of the head. The bruises were near the front, but on the right-hand side. There were no other marks upon the body. There was nothing on his person except a pipe and something of those things. On the ground underneath there • was a great deal of blood, also a lantern and his hat. These were lying directly under him, on the ground below. A lunch-pail was found. The lunch was not eaten. I think Mr. Davis, the sheriff, found it. His back was up against the barrel, his head turned toward the south. He was hit upon the right-hand side of the head. The distance between the barrel and the end of the timbers that were against his breast was about sixteen or seventeen inches. The tie was against his breast and the barrel against his back. He was touching both barrel and tie, so close that we had to shove the barrel off in order to remove his body from between the tie and the barrel. The barrel was not attached to the timber. It was full of water, and with some effort we succeeded in shoving it off on to the ground. . . . His face was facing the railroad ties and the rails. When I took the body out, he was dressed heavy. It was cold as the present weather, except it was foggy weather. He had on winter

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Witness Davis, sheriff of the county, helped to remove the body. He testified that the body was about 250 or three hundred feet from the Modesto end of the bridge. “His head was leading to the south, and his face toward the railroad track; his back was wedged in between the barrel and the timbers, in a squatting position. We had considerable trouble getting him out.”

The bridge structure consists of a steel bridge proper crossing the Tuolumne River for about 150 feet at the south end and a trestle thence northerly for about a quarter of a mile, the roadbed being about twenty-eight feet above the river bottom land. The structure is graphically shown by a sketch attached to appellant’s brief, which appears to illustrate correctly the situation at the location of the accident and the general construction of the trestle. Figure 1 is a cross-section of the trestle at the cap where deceased met his death, showing the barrel, “a”; the end of the cap without any barrel, “b”; the location of the lowest step of a locomotive with relation to the bridge ties, “c.” The plan of construction is given by witness Cobum, foreman .of defendant’s construction work: “First, piles -were driven four in number in each set. The sets were fifteen feet apart center to center. Each set was driven in crosswise of the track. Across the

The evidence was that the construction of this trestle was in accordance with the plans prevailing throughout the Southern Pacific system. The contention of plaintiff is that the defendant was negligent in failing to provide a safe place for the decedent to take refuge from passing trains. In other respects we do not understand that there is objection urged to the general construction of the bridge. So far as the public is concerned, there was no obligation upon the railroad company to provide safety stations. There was, however, a duty to make such provision for its employees, and its contention is that the ends of these caps, occurring on both sides of the track every fifteen feet, furnished such places of safety. Witness Burgess, supervisor of bridges and buildings for the defendant corporation, testified: “I am familiar with the methods employed by railroad men in getting out of the way on bridges of this kind when trains are passing. They simply get down on the cap and sit there until the train passes, steadying themselves with a hand on the guard tim

Witness Foulks, telegraph operator of defendant company, testified: “There is a set of block signals at the curve leading to the bridge east of Modesto a short distance that should be in plain sight of the bridge. During the night there is a light; when it is safe, it is a green light and the arm extends downward in a slanting position, that is, when there is no train in the block coming from the west. When the train enters the block coming from the west, the signal-arm goes up, becomes horizontal, and the green light disappears and a red light is shown. . . . The train would ordinarily whistle five different times passing through this town from the west before it reaches the bridge. No whistle is given for the bridge.” It was testified that there is a whistling post a quarter of a mile from the bridge. Witness Coburn testified that when engines are coming from the north whistles can be heard upon the bridge when they are in the block and the ringing of bells can be heard as they pass through the town. “The headlight of an engine approaching can be seen from the northern end of the bridge for about a half a mile, very-near a half a mile.” The testimony of the engineer and fire

"Witness Osborne, car foreman of defendant company, testified, as did witness Coburn, to the effect that the end of the cap was a safe place of refuge during the passing of trains and that he could not see “that there would be any difference getting down in the night time than it would in the day time, if he had a lantern. ’ ’ He testified that it would not be as easy for a person to get down on the cap the first time in the night as it would be in the daytime. The record states: “Here a model of a portion of the bridge is offered in evidence, consisting of a cap, the stringer nearest to the cap in position, several ties placed on the stringer and the guard-rail. The jury inspected the same, went upon the top, experimented in getting down from the top of the ties and guard-rail on to the cap. The witness illustrated how he could sit upon the ends of the ties, place his feet upon the cap, and then go down upon the cap upon one knee and one foot. ’ ’ It was stipulated that if the engineers and firemen of the trains passing over the bridge between 6 P. M. and midnight of January 11, 1916, were present, they would testify that they crossed the bridge in the usual manner, giving the customary signals by bells and whistles; that the trains were not operated at over ten miles an hour and had powerful electric headlights by which objects within 250 feet were plainly visible; that they kept careful watch and saw no man on the bridge and no light at or near any barrel and “that neither his engine nor his ears struck or killed the deceased.”

We have at considerable length endeavored to state the evidence and to show the conditions existing at the time of the accident. Defendant advances the following contentions:

“First: That defendant was not negligent in failing to provide a safe place for the decedent to perform his work.

“Second: That the sole cause of the injury to the decedent, if it was caused by a passing train, was the gross negligence of decedent in failing to select places on the bridge which were designed for and were perfectly safe, and also because

he did not, when placing himself in position selected, take ordinary precaution to protect himself, in which event he would have been safe.

“Third: The danger attendant upon decedent’s manner in performing his work was open, obvious and plainly apparent. He made no objections thereto and continued in the performance of his work after having had full opportunity to observe and appreciate the surrounding conditions. He therefore assumed the risk attendant upon the performance of the work which he undertook.

“Fourth: Even assuming that defendant was negligent in. failing to provide a safe place to work there is no evidence which discloses that such failure was the approximate cause or had anything to do with the death of decedent.

“Fifth: The damages awarded were excessive.”

Deceased had never before done any work for defendant at night and this was his first service as watchman. So far as appears, his knowledge of the construction of this bridge and trestle was such only as he may have acquired in riding over it on a handcar to and from his work elsewhere two or three times a week for some months. It is not shown nor is it claimed by defendant that he knew anything about the provisions made for men working on the bridge to avoid passing trains except such knowledge as he had acquired in the two or three nights he had served as watchman before he was killed. What course he pursued during these nights, if he happened to be on the bridge when a train passed, we do not know. He may have been at one end of the bridge when the two regular trains passed not long before the extra engine 2435 came along. It is reasonably clear that he met his death by being struck by some part of an engine or car while endeavoring to protect himself by taking refuge on the platform where a barrel stood on the east side of the trestle, two or three hundred feet from the north end. The position of the wound caused by the blow which crushed his skull and the position of the body left little doubt of the cause of his death. There were no trains before midnight except the two regulars a few minutes before 9 P- M. and the extra engine 2435 a few minutes after 9 o’clock. The next trains going south were after 3:30 A. M. His lunch was not eaten, which would indicate that the accident occurred before midnight, for it is reasonable to assume that he would have eaten it before

Deceased was told to watch the bridge, but was not instructed how to do it. It is claimed that he could have performed his duty by walking on the county bridge, which is parallel to the company’s bridge and sixty or one hundred feet distant from it; or he could have walked underneath the bridge, thus avoiding any danger from passing trains. It seems to us that' when told to watch the bridge deceased would naturally assume that he was to patrol it, and to do this efficiently he must go upon it. If, as is claimed, ample provision was made to escape passing trains, it was not a place of danger. If there was danger from lack of such provision or from provision likely not to be comprehended by deceased, he should have been warned of the danger and instructed how to avoid it. The suggestion that he should not have gone on to the floor of the bridge implies danger and lack of provision to escape it. Appellant cannot consistently urge that deceased ought not to have gone over the bridge and at the same time urge that it was entirely safe, for, if the bridge was a safe place, there is no reason why the deceased should have avoided going on to it in the discharge of his duty.

It is not to be overlooked that after this accident the defendant raised the platforms for the barrels even with the ties and extended them so that the space between the barrels and the ends of the ties is three feet, whereas formerly this space was but eighteen inches. The present platforms are quickly accessible and afford a perfectly safe place of refuge. ■ The change may not establish the fact that the former platforms were unsafe, but it shows very clearly that at small cost a safe place has been provided, and might have been provided, before the accident occurred and would have avoided it. It is also tó be considered that a working model of a section of the bridge was introduced, and the jurymen were allowed to

Whether or not defendant was negligent in failing to provide a safe place for the decedent to work; whether decedent was guilty of gross negligence in failing to select a place which was designed for safety and was safe; whether, when placing himself in the position selected, he failed to take ordinary precautions to protect himself, were questions which, under the evidence, could not be taken from the jury and decided by the court as matter of law, but. were proper questions for the jury. In Herbert v. Southern Pacific Co., 121 Cal. 227 , 229, [ 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.” (Citing cases.)

Appellant contends that deceased assumed the risk attendant upon the performance of the work which he undertook, for the reason that his manner in performing the work “was open, obvious, and plainly apparent”; that “he made no objections thereto and continued in the performance of his work after having had full opportunity to observe and appreciate the surrounding conditions.”

The burden of establishing the defense of assumption of risk is upon the defendant. (Kanawha & Michigan Ry. Co. v. Kerse, 239 U. S. 576 , [ 60 L. Ed. 448 , 36 Sup. Ct. Rep. 174 ].) “The question of assumption of risk is quite apart from that'of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in performing such duties. . . . This rule is subject to the exception that where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation.” (Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64 , 67, [ 48 L. Ed. 96 , 24 Sup. Ct. Rep. 24 ].) Appellant relies upon the exception to the rule. The evidence does not compel the inference that deceased had knowledge of the danger attending resort to the platform as a place of safety

In Crabbe v. Mammoth Channel G. M. Co., supra, at page 506, of 168 Cal. [ 143 Pac. 716 ], the court said: “(Where death is occasioned under circumstances such as this, without eyewitnesses, the law comes to the aid of the plaintiff who is pressing a suit for damages for the death, and that law is found in the presumption of the Code of Civil Procedure—namely, that a person takes ordinary care of his own concerns. (Citing cases.) This is a controvertible presumption, it is true, but until controverted it is evidence in accordance with which the jury is bound to decide.” (See Boyle v. Coast Imp. Co., 27 Cal. App. 714 , 722, 723, [ 151 Pac. 25 ].) In the case of Texas & Pacific Ry. Co. v. Swearingen, 196 U. S. 51 , [ 49 L. Ed. 382 , 25 Sup. Ct. Rep. 164 ], track No. 1 ran over a scale in the yard at El Paso. Two feet beyond the scale-box was track No. 2, parallel with No. 1, and beyond this two other tracks, Nos. 3 and 4. The space between a ladder on the side of a freight-car when running on track 2 and the scale-box was shown to be nineteen and one-half inches. The scale was in plain view and plaintiff knew of its location, but did-not know of its dangerous proximity to track 2. In considering the contention that plaintiff assumed the risk the court said: “The court of appeals was of opinion, and rightly, we think, that the dangerous contiguity of the scale-box to track No.’ 2, and the extra hazard to switchmen resulting therefrom, was not so open and obvious on other than a

An objection was made to an instruction given by the trial court that plaintiff knew the location of the track scale-box and the track 2 on which he was riding in reference to the scale-box; that the location was open and obvious to plaintiff’s view, and as an experienced brakeman he was charged with notice that riding on the cars as he did was dangerous, and that he assumed the risk and the court should have so charged the jury. In commenting upon this contention the supreme court said: “This assignment but reiterates contentions made in connection .with the assignment based on the alleged error in overruling the motion for judgment. As we have already decided that knowledge of the increased hazard resulting from the dangerous proximity of the scale-box to the north rail of track No. 2 could not be imputed to the plaintiff be-cause he was aware of the existence and general location of the scale-box, it was for the jury to determine, from a consideration- of all the facts and circumstances in evidence, whether plaintiff had actual knowledge of the danger.”

In the case of Choctaw, O. & G. R. Co. v. McDade, supra, the court said: “Upon this question the true test is not in the exercise of care to discover danger, but rather the defect is known or plainly observable to the employee.”

As to appellant’s fourth point, we think the evidence was sufficient to justify the submission of the question to the jury whether the alleged negligence of defendant was the proximate cause of decedent’s death. We have stated very fully the facts and circumstances attending the death of decedent and need not repeat them. “Doubtless,” as was said in Wabash Screen & Door Co. v. Black, 126 Fed. 721 , [ 61

It is claimed that the verdict was excessive for the reason, as given in appellant’s brief: “The uncontradicted testimony showed deceased received $75 per month. No allowance at all was made for any cost of living, clothing, or shelter of the deceased.”

The life expectancy of deceased was 17.4 years. He had a probable earning capacity of bine hundred dollars per year for 17.4 years, or $15,336. The plaintiff was awarded seven thousand five hundred dollars, to be apportioned between herself and her minor children as above shown. We may assume that the jury took into account the items mentioned by appellant, since they reduced decedent’s gross earning capacity nearly one-half.

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 13, 1919.

Sloss, J., Melvin, J., Lawlor, J., and Lennon, J., concurred.