Hampton v. Pacific Electric Railway Co.

Plaintiff, about 65 years of age, for many years employed by the Pacific Electric Bailway as a conductor, was injured when he fell in descending from a loading platform of the company at its station in Azusa. Suing under the Federal Employers' Liability Act he was awarded substantial damages in a jury trial and following denial of its motion for a new trial the defendant company appeals.

The sole question is whether the evidence and proper inferences therefrom, viewed in the light most favorable to plaintiff, were such as to justify the determination by the jury that defendant failed to provide plaintiff with a safe place to work, or in other words, that it was negligent with respect to that duty.

We can give a better recital of the facts by use of the accompanying photograph. It shows the major portion of the south side of the building. The door seen in the picture, which we will refer to as the south door, leads into the room of the stationmaster. To the west is the freight room. At the west end of the freight room is a door which was locked with an inside bolt. On the north side of the building is a single track for use in loading and unloading cars. Also on the north side of the building is a broad platform, the height of the loading platform, from which loading and unloading may be done. This platform extends easterly from the westerly loading platform and leads into a ramp which meets the ground level near a door which is opposite the south door. The floor of the loading platform seen in the picture at the west end of the freight room is approximately 3 feet 9 inches above the ground. A short distance above

There is no conflict of authority as to the applicable principles of law. Defendant had no liability except for negligence, and that has been the question in all the cases under the Federal Employers ’ Liability Act. The usual rules of negligence apply. In the cases where the employer is charged with a failure to provide the employee with a safe place to work, the question usually is whether an occurrence of the nature of that which caused injury to the employee was one known to or within the reasonable anticipation of the employer, that is to say, whether he knew or should have known that the conditions, facilities or instrumentalities provided were likely to be used in the manner in which they were used and which resulted in the injury.

It is axiomatic, as defendant says, that where the conditions and facilities of employment provide safety when made use of for the purpose for which they were intended, an employer cannot be held guilty of negligence in failing to provide against unexpected uses which would involve danger. This is the text of the cases cited by defendant. (Brady v. Southern Ry. Co., 320 U.S. 476 , 483 [ 64 S.Ct. 232 , 88 L.Ed. 239 , 245]; Campbell v. Southern Pac. Co., 120 Ore. 122 [ 250 P. 622 ]; Hahn v. Chicago M. & St. P. Ry. Co., 157 Minn. 354 [ 196 N.W. 257 ]; McDonald v. Fryberger, 233 Minn. 156 [ 46 N.W.2d 260 ]; Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207 [ 69 S.Ct. 507 , 93 L.Ed. 618 , 619, 620].)

We agree with defendant that when the station was constructed it was doubtless anticipated that employees would use the ramp in descending from the platform and that it was not reasonably to be anticipated that they would descend by means of the stringer, which was installed solely as a protection against injury by freight trucks. Under these circumstances the duty of the company would have been fulfilled, inasmuch as it was not negligence to overlook what was not reasonably foreseeable; but if the employees had developed the practice of descending from the platform by stepping onto the stringer, and if the company had knowl

The rule is stated in 39 Corpus Juris, page 441, as follows : “Where the place of work, machinery, or appliances is reasonably safe and suitable for the purpose for which it was intended, a servant cannot hold his master liable for personal injuries resulting from its inappropriate, unauthorized, unnecessary, careless, improper, or unusual use or test. But when an appliance is improperly used with the knowledge of the master, it makes no difference, so far as his liability for such improper use is concerned, whether or not it was originally built for such purpose. . . .” (56 C.J.S., p. 1006; Kaumans v. White Star Gas & Oil Co., 92 Utah 24 [ 63 P.2d 231 , 236].)

It was clearly a question of fact whether the evidence brought the case within the operation of this rule. There was evidence of the following facts: Wlien an employee found the west door of the freight room locked from the inside it was necessary to go to the stationmaster’s room and from there enter the freight room and unbolt the west door; the north door where the ramp was located was kept locked and plaintiff had no key to that door; the employee, then, desiring to enter the freight room could descend from the platform, as plaintiff did, in order to go to the main south door, or he could go to the north side of the building, walk along the platform, down the ramp, then to the sidewalk at the east end of the building and thence along the south side to the main door. This would be a distance of from 120 to 350 feet. Evidence was given by several trainmen as to the customary practice of employees when they found the west door of the freight room locked. Plaintiff had been working on the Azusa route for about five months. He had descended from the platform in the same manner as on the day of his injury “five, ten or twenty times”—“15 or 20 times”; he did not recall ever having used the ramp. A motorman who had worked the run for a year, and at different other times, and who was working with plaintiff on

It was fairly to be inferred that the company knew of the described practice. In fact, learned counsel for defendant properly, we think, do not question the sufficiency of the evidence to support the implied findings that the practice existed as described, and that the company had knowledge of it.

The parties discuss at length the case of Wilkerson v. McCarthy, 336 U.S. 53 [ 69 S.Ct. 413 , 93 L.Ed. 497 ], reversing the Supreme Court of Utah, 112 Utah 300 [ 187 P.2d 188 ]. Wilkerson sued under the Federal Employers’ Liability Act for injuries sustained when he fell into a repair pit maintained by a railroad beneath its tracks. The question was whether there was a practice among the employees to cross the pit on a board as Wilkerson attempted to cross. Guard chains around the pit were maintained by the defendants. In a thorough and forceful opinion the Supreme Court of Utah held there was insufficient evidence to prove the alleged practice, and that maintenance of the guard chains acquitted defendants of the charge of negligence. The United States Supreme Court, the Chief Justice and one Justice dissenting, held there was evidence sufficient to support a finding that

It would serve no good purpose to expatiate upon settled principles of law which are not even in disagreement in the case. It cannot be said as a matter of law that the company fulfilled its duty by providing the ramp as a safe means for getting down from the platform when it was known that in common circumstances the employees climbed down by means of the stringer.

Since defendant does not question that the law is as stated, and does not challenge the sufficiency of the evidence to prove the alleged customary practice of its employees, and its knowledge thereof, nothing remains to support a claim of error. Whether use of the stringer, as described, involved unreasonable risk, and the company with knowledge of the use was negligent in permitting the practice of the employees to continue, were questions for the jury.

The judgment is affirmed.

Wood (Parker), J., and Vallée, J., concurred.

A petition for a rehearing was denied June 19, 1953, and appellant’s petition for a hearing by the Supreme Court was denied July 28, 1953. Spence, J., was of the opinion that the petition should be granted.