Mangrum v. Union Pacific Railroad

In an action for damages for the death of her husband, brought under the Federal Employers’ Liability Act, plaintiff appeals from judgment after jury verdict in favor of defendant.

Questions Pbesented

1. Alleged erroneous instructions on proximate cause.

2. Alleged erroneous instructions on agency:

(a) as to Mangrum’s fellow employees;

(b) as to doctor furnished by defendant;

(c) as to the dining ear steward;

(d) as to the hotel clerk at the hotel provided by defendant.

3. Alleged erroneous limitation of testimony as to Mangrum’s illness while off duty.

Plaintiff is the widow of Lewis Mangrum and the administratrix of his estate. He was a waiter on the City of Los Angeles, one of defendant’s interstate trains. He died of pneumonia as the train was pulling into Rawlins, Wyoming. This being a Federal Employers’ Liability Act action plaintiff is required to prove that Mangrum’s death was proximately caused by negligence of defendant.

At the time of his death Mangrum was assigned to the train City of Los Angeles from Omaha to Chicago, then to Los Angeles, and then back to Omaha, with Omaha being his home terminal. Mangrum was ill on the trip from Omaha to Chicago and Chicago to Los Angeles. While in Los Angeles, Mangrum and other members of the dining car crew stayed at the King Hotel. The Union Pacific has a contractual arrangement with the hotel whereby a certain number of rooms are set aside for the dining car employees, but the men are not required to stay at the hotel. The dining car crew arrived at Los Angeles at 10:15 a.m. and were off duty until 11 a.m. the following day. They are not paid for the off-duty 25 hours, and the Union Pacific has no control over their actions during that time.

Mangrum registered at the King Hotel on November 4,1960. He appeared to be sick and nervous when he did so. He reported for work the next day, being helped to the train by two other crew members. His fellow employees took his part of the work in loading supplies from the commissary onto the train so that he could rest. Mangrum assisted in arranging the supplies inside the dining car but appeared to move a little slowly. He attempted to assist in serving dinner that night but was sent to the dormitory by the steward, Mr. Ketley. Mangrum began to perform his normal duties at the breakfast meal but was sent back to the dormitory ear again by the steward. The steward then informed the train conductor that Mangrum was in need of a doctor. When the train was approximately one hour out of Salt Lake City, the train conductor sent a wire there requesting that • a doctor meet the train at Ogden, Utah.

Dr. Feeny, a certified specialist in internal medicine and a physician under contract to the Union Pacific Railroad Employees Hospital Association testified that he was called by telephone to go to the railroad station and examine Mangrum. He made a diagnosis of bronchitis and administered penicillin. He only spent a few minutes with Mangrum and did not take

Mangrum remained on the train and early in the afternoon was found sitting in a passenger ear admittedly not knowing where he was. Later that afternoon, he was found turning in a circle around the water stand in the dormitory. Mangrum was turned over to a doctor and ambulance attendants at Rawlins, Wyoming. He died of pneumonia around this time.

Plaintiff does not attack the sufficiency of the evidence to support the verdict. She contends that the giving of certain instructions was prejudicially erroneous.

1. Proximate cause.

The court instructed, “In order to impose liability on the defendant railroad on the basis of the negligence, if any, on the part of Doctor Feeny, if you find such to exist, you must first determine that Doctor Feeny was the agent of the railroad and acting within the scope of his authority and, second, that he failed to exercise the degree of care required of him by law and that such failure was the proximate cause of Louis [sic] Mangrum’s death.” (Italics added.)

A later instruction stated, “Liability in law attaches only to the proximate cause of the injury, and to that cause only when it issues from negligence. Although many circumstances leading up to and surrounding an injury may be linked to it in a chain of causation, so that we may say that the injury would not have happened without them, the proximate cause consists only of the factor or combination of factors that cause the injurious result.” (Italics added.)

Plaintiff’s attack on these instructions is based upon the word “the” in the emphasized portions. She contends that the first instruction, in effect, placed upon her the burden of showing that negligence of Dr. Feeny was the sole proximate cause of death rather than “a” proximate cause. Under the Federal Employers’ Liability Act, a railroad employer becomes liable for injuries to his employees if his negligence

“ The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.” (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652 , 660-661 [ 320 P.2d 500 ]; Sebrell v. Los Angeles Ry. Corp. (1948) 31 Cal.2d 813 , 817 [ 192 P.2d 898 ].) An entire reading of the jury instructions reveals that the trial judge used the phrase “a proximate cause” fourteen times. The court also referred to “one of the proximate causes,” “proximate causes,” and “a contributory proximate cause.”

Immediately preceding the instructions first above-mentioned were instructions to the effect that if the jury found that “Doctor Feeny and all the other alleged agents of the defendant railroad were not negligent, or if negligent that his or their negligence was not a proximate cause of the death of Louis [sic] Mangrum, then ... it becomes unnecessary to consider the question of agency.” (Italics added.) “But if you find that any or all of such alleged agents were negligent and that such negligence was a proximate cause of the death” (italics added) then agency must be determined. Then followed instructions on agency, and then the first instruction hereinbefore quoted.

Following that instruction were several on the duties of a physician and the standard of care applicable; and then, “In order to impose liability upon the defendant, its breach of duty, acting through its agents and employees, if any, must have been a proximate cause of Louis [sic] Mangrum’s death. . . .” (Italics added.) After stating that to reduce recovery in this case decedent’s contributory negligence, if any, must have contributed proximately to his death, the court defined “A proximate cause of an injury” as “a cause” and then

Plaintiff contends that as a matter of law the King Hotel clerk, the dining car steward, and Mangrum’s fellow employees were all agents of defendant and had a duty to take some action on behalf of Mangrum because they all knew that he was seriously ill. The court defined agency and instructed, in effect, that it was for the jury to determine whether agency existed as to each of such persons and whether any of them were negligent in their actions toward Mangrum.

(a) The fellow employees (other than the steward).

Plaintiff contends that a duty to report Mangrum’s condition to the dining car steward existed upon the part of the other employees, as a matter of law. Plaintiff does not contend that because his fellow employees had knowledge of it, that notice of Mangrum’s illness was chargeable to the company. It is an elementary principle that for knowledge of an agent to be chargeable to his principal, such knowledge must relate to some matter within the scope of the agent’s authority, so that it is his duty to report the information to the employer. The evidence showed that ordinarily it was not the duty of the fellow employees to report any illness of another employee, rather the sick person must report his own illness to a supervisor.

Supporting her theory that the fellow employees had a duty as a matter of law to report Mangrum’s condition, plaintiff cites Anderson v. Atchison T. & S. F. Ry. Co. (1948) 333 U.S. 821 [ 68 S.Ct. 854 , 92 L.Ed. 1108 ], a Federal Employers’ Liability Act action brought in the California Superior Court against the defendant railroad to recover damages for the alleged wrongful death of an employee. The complaint alleged that decedent was a conductor on the defendant’s passenger train westbound from Amarillo, Texas, to Belen, New Mexico. While the train was moving approximately opposite the defendant’s station at G-allaher, New Mexico, decedent fell from the train’s rear vestibule where it was proper for him to be in connection with his duties. Decedent’s fall resulted in injuries which made it impossible for him to secure help by his own efforts. At the next station, where the train stopped, the defendant’s employees “ ‘made note of the absence of decedent' ” but passed by it and three other stations without taking any steps to ascertain his whereabouts or what had happened to him. At the next station thereafter (Yeso), the regular train con

The California Superior Court held that the allegations of the complaint were insufficient to support a judgment for the plaintiff, and gave judgment for the defendant. The California Supreme Court affirmed. The United States Supreme Court reversed saying: “It thus appears that we have a complaint which charges that a conductor disappears from a moving train in bitter cold weather at a time when his duty requires him to be on the rear vestibule, his absence is discovered, and efforts of any kind to ascertain and save him from his probable peril are not promptly made by other train employees, the only persons likely to know of his disappearance and the probable dangers incident to it. We are unable to agree that had petitioner been permitted to introduce all evidence relevant under her allegations, the facts would have revealed a situation as to which a jury under appropriate instructions could not have found that decedent’s exposure and consequent death were due ‘in whole or in part’ to failure of respondent’s agents to do what a ‘reasonable and prudent man would ordinarily have done under the circumstances of the situation.’ [Citations.]” (P. 823.)

From this appellant believes that there was a duty imposed upon Mangrum’s fellow employees to report his illness, and their failure to do so was negligence imputable to their employer as a matter of law. However, the ease does not lay down such a broad rule. In Anderson the court is saying that possibly a jury can find negligence and the railroad company’s responsibility if allowed to pass upon all the evidence under the proper instructions. Anderson holds, in effect, that the agency question as well as the question of negligence if the employees are found to be agents in the circumstances is a matter for the jury, thereby supporting the trial court’s action in our ease in leaving these questions to the jury.

The court held “that when a railroad employee’s injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are ‘agents’ of the employer within the meaning of section 1 of the FELA.” (Pp. 331-332.)

The circumstances to which the court applied that rule follow. In Sinkler v. Missouri Pac. R. Co., supra, 356 U.S. 326 , the petitioner was employed by defendant railroad company as a cook on the general manager’s private ear. While he was working in the car a switching crew employed by the Houston Belt & Terminal Railway Company (hereinafter called the Belt Railway) were switching the ear from one track to another. Through the fault of the switching crew, the car was caused violently to collide with another railroad car, and the petitioner was injured. He recovered judgment against his employer in a Federal Employers’ Liability Act action. The Texas Court of Civil Appeals reversed upon the ground that the Federal Employers’ Liability Act did not subject the defendant to liability for injury of its employees caused by employees of the Belt Railway. On certiorari to the United States Supreme Court after the Supreme Court of Texas denied a writ of error, that court reversed and remanded. It pointed out “Switching is a vital operational activity of railroading. . . .” (P. 327.) No switching in the Houston terminal area where the accident occurred was done by the defendant; switching had been contracted with the

Ward v. Atlantic Coast Line R. Co. (1960) 362 U.S. 396 [ 80 S.Ct. 789 , 4 L.Ed.2d 820 ], was an action under the Federal Employers’ Liability Act by a railroad section gang laborer employed by the defendant who was injured while engaged in replacing ties under a siding track maintained by, and repaired at the expense of, a private corporation. The reviewing court held that the private corporation was not the agent of the railroad, nor was the employee “ ‘ engaged in furthering the operational activities’ ” of the railroad, as in Sinkler, supra, but that the issue of whether the laborer was working for the railroad at the time of the accident was to be determined by the jury, and that the trial court erred in instructing that such issue could be determined solely on the question of whether the railroad considered him to be working for it or the private corporation. The reviewing court discussed the doctrine of Sinkler and stated where “the railroad engaged an independent contractor to perform operational activities required to carry out the franchise ’ ’ the railroad is liable for the negligent acts of the independent contractor.

In O’Donnell v. Pennsylvania R. Co. (1954) 122 F.Supp. 899 , the plaintiff while working on the defendant’s engine received a foreign substance in his eye. Later an assistant road foreman instructed him to consult a doctor in the defendant’s employ. Through the negligence of the doctor the plaintiff suffered an injury to his eye. The sole question presented was whether the plaintiff was working in interstate commerce. It was held that “he was doing something which was intended to lay the foundation for and to be in aid of subsequent acts of interstate commerce.” (P. 901.) Although the doctor was admittedly in the employ of the railroad, the ease is important here because it holds, in effect, that a physician’s services in earing for an injured employee is in aid of the operation of the railroad. We can see no difference in this respect as applied to an injured employee or to an employee sick while on duty.

The Sinkler doctrine was applied in Leek v. Baltimore & Ohio R. Co. (1962) 200 F.Supp. 368 . This was a case involving injuries to defendant’s railroad employee sustained while riding in a taxi cab. The taxi cab was transporting the plaintiff back to the railroad yard from a chemical plant at the

These eases apparently have initiated a trend to wipe away the line between agent and independent contractor in Federal Employers ’ Liability Act eases. Likewise, there is a trend to the effect that medical care provided by a railroad to its employees is considered “operational activities” and that the question of agency becomes irrelevant. As pointed out in the dissenting opinion of Mr. Justice Harlan in SinMer, supra, the United States Supreme Court has been rapidly incorporating the Federal Employers’ Liability Act into what amounts to a workmen’s compensation statute.

In Dunn v. Conemaugh & Black Lick R. (1959) 267 F.2d 571 , an employee of the railroad underwent a drastic operation for chronic ulcers. Before he could return to work he was required by the defendant to submit to a physical examination by an examining physician of its selection. The doctor certified him as fit to return to work. At the trial the defendant contended that the doctor was not its employee but an independent contractor. This issue was submitted to the jury. The defendant railroad employed no physicians but had a contractual arrangement with the Bethlehem Steel Company under which any railroad employee needing the services of a doctor was treated by the Bethlehem Steel Company’s doctors, and employment examinations and examinations for fitness to return to work were performed by these doctors. The district court judge in denying the defendant’s motion for new trial stated that as a matter of law the doctor was acting as defendant’s employee. However, the reviewing court held that the doctor’s status under the circumstances was a jury question.

Carney v. Pittsburgh & Lake Erie R. Co. (1963) 316 F.2d 277 , was a Federal Employers’ Liability Act action brought against the railroad company by an employee for injuries received while asleep and off duty, as a consequence of his fall from a negligently maintained bed in the Pittsburgh & Lake Erie Railroad Y.M.C.A., in Campbell, Ohio. The plaintiff’s expenses at the Y.M.C.A. were billed directly to the railroad

Ordinarily a doctor is by reason of his profession an independent contractor, but he may under certain circumstances become an agent. (McGuigan v. Southern Pac. Co. (1954) 129 Cal.App.2d 482 [ 277 P.2d 444 ].) In resolving this point each ease must be decided on its particular facts and ordinarily no one feature of the relationship is determinative. (Cimorelli v. New York Cent. R. Co. (1945) 148 F.2d 575 , 577.)

There is very little evidence in this case on Dr. Feeny’s relationship to defendant. Dr. Feeny testified that he was on the staff of four different hospitals, that he engaged in private practice, that he had a contractual relationship with the Union Pacific Railroad Employees Hospital Association, that he was paid on a salary basis by the hospital association for services rendered. Under his contract with the hospital he was to handle “medical problems of the employees of the association.” He is also called from time to time to perform emergency services on passengers or railroad employees. Dr. Feeny was not sure if the defendant reimbursed the hospital association for its expenses, but he did know that the railroad employees paid regular dues to support the hospital association.

Of considerable significance is McGuigan v. Southern Pac.

While the relationship between the hospital and the railroad in McGuigan was different from the relationship between the hospital and defendant in the case at bench, in that there the railroad contributed to the support of the hospital and the railroad was represented on its board of managers, while here the railroad did not contribute to the hospital’s support, nor was it represented in any way with the hospital’s management; such difference is not important for the reason that the court in McGuigan placed liability on the Southern Pacific because that company from the operations of the hospital derived direct financial benefits, as hereinbefore stated. So in our ease defendant derived direct financial benefits from the hospital supplying doctors to treat injured or ill employees and to determine their fitness to work as a result of sickness or injury.

“The cases on this subject are not clear-cut. It seems to be the general rule that an employer who undertakes gratuitously to furnish medical attention to his employees is liable only if he is negligent in the selection of the physician, and is not liable for the negligence of the doctor, although there are eases to the contrary. . . . But where the medical services are furnished under circumstances that a direct benefit to the employer results, the employer is liable for the negligence of the doctors.’’ (P. 494.) “The key test as to the extent of the employer’s duty seems to be whether the employer secures a financial benefit from the operation of the hospital. . . . Thus, although the hospital may be an independent contractor in many respects, if a financial benefit accrues to the employer by the operation, the latter is liable for the negligence of the doctors in performing a duty assumed by the employer. That is this ease.” (McGuigan v. Southern Pac. Co., supra, at p. 495.)

The court later stated: “Thus, although the challenged instruction may have been erroneous in telling the jury that if it found the hospital to be an independent contractor nevertheless appellant would be liable under the circumstances set forth in the instruction, such error could not have been prejudicial because, as a matter of law, the uncontradicted evidence establishes a case of respondeat superior.” (P. 496; italics added.)

Prom the cases hereinbefore discussed there appear two theories under which an independent contractor performing a service for a railroad employee at the request of his employer is considered as “agent” of the carrier under the Federal Employers’ Liability Act. One, as in Sinkler, supra, where the service constitutes a nondelegable “ ‘operational activity’ ” of the carrier. Testing the relationship of Dr. Feeny to defendant in the instant case by the Sinkler rule, it appears as a matter of law that the doctor was engaged in an operational activity of the railroad, one necessary to carry out its franchise, as Ward, supra, puts it, for a railroad cannot operate properly without a full healthy crew aboard a train.

The second theory is, as stated in McGuigan, supra, where the service is such that a financial benefit accrues to the carrier from such service. Testing Dr. Feeny’s relationship to defendant under that theory it appears as a matter of law that a financial benefit accrued to defendant from his services, as defendant was required by custom and practice to take care of its employee who was sick while on duty. Dr. Feeny as a matter of law being an “agent” of defendant under the Federal Employers' Liability Act, the court erred in leaving the determination of that agency to the jury. The jury should have been told that he was such agent.

This error was highly prejudicial. The court instructed that a test by which to determine agency is whether the person charged with being an agent “was subject to the orders and control” of the one claimed to be the principal. As indicated in Carney, supra, at page 279, the matter of control is not necessarily a factor in determining whether an independent contractor is an “agent” under the Federal Employers’ Liability Act. Moreover, no instructions were given to the jury as to how to determine “agency” under the Federal Employers’ Liability Act. The only instructions on the subject were the usual agency instructions. As hereinbefore shown the test of agency under the Federal Employers’

In Dunn, supra, the court held that the question of whether Dr. Carney was an employee or an independent contractor was a jury question. It held in effect that the case contained factual elements from which conflicting inferences and conclusions could be drawn. It pointed out, however, that if reasonable men could not reach different conclusions on the issue, the issue became one for the court. In the instant case there was no conflicting evidence on the subject, nor conflicting conclusions to be drawn therefrom.

Defendant contends that by offering plaintiff’s proposed instruction 9, plaintiff invited the court’s error in instructing the jury to determine the question of Dr. Feeny’s agency. Plaintiff’s instruction 9 did not deal with the question of determining agency. It dealt with the question of the authority and conduct of those whom the jury might have found to be agents of the company. The offering of this instruction in no wise constituted an invitation to error.

Defendant in its brief states, “Whether or not Dr. Feeny should have been considered as the agent of the Railroad Company in the performance of his medical attentions was likewise a matter for jury determination under appropriate instructions.” Thus, defendant concedes that there was evidence which would support a finding of agency. Such a determination concerning a doctor who ordinarily would be considered an independent contractor, could not be based upon the ordinary tests of agency, but only because under the Federal Employers’ Liability Act, such a contractor can be held to be an agent, and, as we herein point out, there was no conflict in the evidence as to the facts concerning Dr.

Because of error in the instructions concerning Mr. Ketley and Dr. Feeny the judgment must be reversed.

(c) Dining Car Steward.

The court left to the jury the determination of whether Ketley was an agent of defendant. This was error. It is undisputed that the dining ear steward is the proper agent of defendant for observing and passing on information pertaining to the physical condition of the dining car employees. It was undisputedly his duty to report all illness and arrange for medical treatment. Thus, as a matter of law Ketley was the agent of the company and the court should have so instructed instead of leaving the determination of his agency to the jury. The claimed negligence of Ketley was his failure to report either to the assistant manager or the doctor what plaintiff contends was the apparent serious condition of decedent.

(d) The Hotel Clerk.

Plaintiff, relying on Carney v. Pittsburgh & Lake Erie R. Co., supra, contends that the hotel clerk was an agent of defendant and required to report Mangrum’s condition. In Carney, as we have hereinbefore stated, the Y.M.C.A. was authorized to furnish a room to the railroad employee. The bed they furnished was defective and caused the employee a back injury. The federal court held that furnishing room and board to its employees while away on business for the railroad was an operational activity of the company. The railroad could be liable for the Y.M.C.A.’s lack of care in providing a place to sleep. This case has no application to a hotel clerk who observes a sick employee of the railroad company and fails to pass on that information or take affirmative steps to help him. If there was any agency at all it would relate solely to the lodging which the clerk and the hotel provided.

There is considerable difference between an injury caused by active negligence of a hotel contracted by the railroad to provide a room for its employees, as to which room the hotel is under a duty to provide safe conditions, and the passive failure of a hotel clerk to report the illness of an employee of the railroad who knows that it is his own duty to report his illness, and whose fellow employees seem to be aware of his condition. The duty of the hotel and its employees

There was no error in limiting the evidence merely to show Mangrum’s mental and physical condition.

Judgment reversed.

Sullivan, P. J., and Molinari, J., concurred.

A petition for a rehearing was denied December 22, 1965.