Minehart v. Southern Pacific Co.

California Court of Appeal Oct 24, 1955 No. Civ. 21107Published

Before: Drapeau

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Holding. The court held that the trial court committed prejudicial error by failing to instruct the jury on whether the locomotive was in use under the Safety Appliance Act and by erroneously instructing the jury on the abolished defense of assumption of risk.

Issues

Whether the trial court erred in refusing to instruct the jury on whether the locomotive was in use under the Safety Appliance Act.
Whether the trial court erred in instructing the jury on the defense of assumption of risk.

Disposition. reversed

Quotations verified verbatim against the opinion

“Obviously a locomotive with a ladder that was greasy and slippery with engine fuel oil was unsafe.”

“In this case when the engine was run out from the roundhouse and placed upon the “turn-out track” it was in service.”

“A new trial in this case is required for an additional reason: The trial court instructed the jury on assumption of risk. That defense has been abolished by law.”

DRAPEAU, J.

Plaintiff, Harry M. Minehart, was employed by defendant, Southern Pacific Company, as a railroad engineer. He was called for duty at Indio, California, in the early morning before daybreak to take a freight train to Yuma.

The engine that he was to use was on the “turn-out track,” headed east, about 150 feet from the roundhouse.

Mr. Minehart made the usual engineer’s inspection. His fireman had not showed up yet. So he looked for him at the roundhouse, but couldn’t find him. Then he returned to the engine and made the fireman’s inspection himself, checking the water and oil and the instruments used to measure and regulate them. This was done on top of the engine.

When he had completed this inspection, Mr. Minehart started down a ladder on the side of the engine, to get back onto the ground. The steps and grab-irons of the ladder were so greasy and slippery with engine fuel oil that he slipped and fell off the ladder to the ground.

After recovering from the shock of his fall he got up, and wiped off the grease on the ladder, using a stick and a rag. Then he went to the roundhouse to report sick, but couldn’t find anyone there. So he went back to his locomotive, ran it to the train it had been designated to haul, and proceeded as its engineer to Yuma, Arizona, the end of his division.

At Yuma Mr. Minehart rested in a railroad boarding house, and on the next day ran a diesel engine with another freight train back to Indio.

There he advised his superiors of the accident, signed accident reports required by the company, and was sent to a company doctor. In these reports nothing was said about the grease on the ladder; but plaintiff testified that he mentioned that fact to the persons who made out the report.

Mr. Minehart was seriously injured. He has never yet been cleared, to resume his work, by the railroad company’s doctors.

In this proceeding under the Federal Employers’ Liability

[488]

Act (45 U.S.C.A. § 51 et seq.), a jury found for the defendant railroad company, and plaintiff appeals from the judgment that followed.

Minehart v. Southern Pacific Co.

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DRAPEAU, J.

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