Weiand v. Southern Pacific Co.

TUTTLE, J.

J.—This action is brought by the widow of Edward W. Weiand to recover damages for the death of the latter, and is based upon the Federal Employers’ Liability Act. The jury awarded damages in the sum of $30,000 and the appeal is from the judgment.

Edward W. Weiand, at the time of his death on the 20th day of January, 1937, was forty-nine years of age, and had been engaged in railroading for some twenty-five years, about fourteen years with the defendant. On the 20th of January, 1937, Weiand was the fifth brakeman on an extra freight train comprising approximately one hundred six cars running from Gerber, in Tehama County, to Boseville, in Placer County. As fifth man, Weiand was responsible for the second twenty-five or thirty cars behind the engine, the first twenty-five or thirty cars being under the charge of the head brakeman, Paul Fizer. The train arrived in the Boseville yard in daylight at approximately 7:30 o ’clock in

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the morning. It was a very cold morning, and many of the cars were covered with ice, snow and frost. The principal part of the defendant’s yard at Roseville, California, lies west of the Lincoln Street crossing. The railroad tracks run in a general westerly and easterly direction. The train in question came into the Roseville yard from the north on a track commonly known as the Oregon lead. Just before this track reaches the defendant’s depot or station, which is a short distance east of Lincoln Street, it turns in a general westerly direction and crosses Lincoln Street at right angles. The Oregon lead retains its identity until it reaches switch No. 2, which is 320 feet west of the west line of Lincoln Street. From this point, continuing west, the lead track is known as track No. 1. Track No. 2 branches off of the lead on the north at switch No. 2. The defendant’s westbound main line is south of the lead. A yard crew working in the west end of the yard had “kicked” two cabooses down the lead and into track 1 some twenty minutes before the train entered. These cabooses stood then about fifty feet from the frog over which trains would pass turning into track 2. Except for the cabooses, track 1 was unoccupied at that end of the yard. As the train turned over the frog into track 2, Weiand was caught between the caboose and the side of the car of the train upon which he was riding. He was found lying on the ground between the caboose and the moving train upon which he had been employed, in an unconscious condition. He lay with his head to the west in the direction of the travel of the train. His clothing was split, exposing the skin up and down the back from waist to shoulder. His sixth, seventh, eighth, ninth, tenth, eleventh and twelfth ribs were broken off an inch from the spine and had pierced the lung and spleen. His chest was crushed, and the whole chest wall was badly discolored. There were a number of lacerations distributed over the body. The left side of the skull was also fractured. He died within a short time. There was no eye-witness to the occurrence. When last seen he was standing on top of one of the moving cars of his train, just before his body was discovered, and while the train was entering the railroad yard at Roseville.