Rogers v. Southern Pacific Co.

DOOLING, J.

This is an appeal by plaintiff, Eula Rogers, administratrix of the estate of Jack E. Rogers, from the judgment entered following a verdict for defendant in an action

[495]

for wrongful death brought under the Federal Employers’ Liability Act. (45 U.S.C.A. § 51 et seq.)

Rogers was an employee of defendant, foreman of a switching crew. On April 13, 1956, while riding on the stirrup of a moving flat car loaded with lumber, he was crushed to death between this car and another flat car located on an adjacent track.

Norman, a switchman on Rogers’ crew, witnessed the accident and testified as to the following facts concerning the switching operation which resulted in the accident. One of respondent’s engines at its Bayshore yards was connected with three flat cars, two containing precut lumber and one containing plasterboard. One of the lumber cars was coupled to the engine and the plasterboard car was the third or last in line. The task for the switching crew was to reverse the order of the cars and to position the plasterboard car next to the engine. To accomplish this the plasterboard car was to be “kicked” into track 89 and the two lumber cars into track 87 (a car is “kicked” when it is pushed by the switch engine until it reaches a desired speed and then uncoupled and permitted to roll). The plasterboard car was kicked and it stopped short of track 89 almost “fouling” or partially blocking passage on track 87.

Rogers was standing by the track 87 switch approximately 120 feet from Norman. He called to Norman,‘ ‘Will it clear ? ’’ and Norman, after checking in the customary manner replied, “Yes, but it will be close.” Rogers then gave the “kick” sign which Norman relayed to the engineer, the engine proceeded to back up and the pin was pulled uncoupling the two lumber ears. After the cars passed Rogers at the 87 switch, he threw the switch and then ran about 70 feet after the cars and jumped on the rear end of the first car. At this time the front of the first car had already successfully cleared the “fouling” point. Rogers then stepped on the stirrup of the second car and rode about 25 to 30 feet before the accident occurred.

The two cars were traveling at a speed comparable to that of a fast walk and Norman, whose dut3>- it was to jump on the ears and brake them if they were moving too rapidly, testified that he did not feel that they were moving too fast and that there was no necessity for riding the cars. As Rogers neared the plasterboard car he “hugged” the side of the ear and continued the ride. At this point Norman could no longer see