Phillips v. Southern Pacific Co.

GOULD, J.,

pro tem.

Plaintiff, employed by defendant corporation as switchman, brought this action for damages for injuries suffered when the impact of cars shunted by a switch engine precipitated him from the roof of a freight car to the ground below. Negligence of defendant in two particulars was alleged, viz., that the string of freight cars upon which plaintiff was working was equipped with faulty handbrakes, in violation of the Federal Safety Appliance Act, and that unusual force and violence, without warning to plaintiff, were used by his fellow employees in shunting other cars against the one upon which he was working. A jury heard the evidence, but the court directed it to find for the defendant, and from the judgment on such directed verdict plaintiff appeals.

Respondent seeks to uphold the directed verdict, upon two grounds: That the evidence is insufficient to justify submission of the case to the jury, and that appellant, because he procured his employment by fraud practiced upon respondent, vitiated his contract of employment and precluded himself from maintaining an action for damages arising out of his relation as respondent’s employee.

There was evidence before the court that as to the car upon which appellant was riding “the brake chain wouldn’t wind up properly, it wouldn’t hold properly”; that the string of cars was shunted against the ear upon which appellant was riding with unusual force and violence, throwing him to the ground and moving the ears forward an unusual distance; that no rider was upon the string of shunted cars, that no

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warning was given appellant, and that the movement of ears at the time of the accident was not in the normal and customary manner.

It is true that much evidence was offered by respondent, and elicited by cross-examination of appellant’s own witnesses, to contradict appellant’s showing, but it is not the province of the trial court upon motion for directed verdict to weigh the evidence. The court may examine it only to determine whether or not there is substantial evidence which, if believed by the jury, would sustain a verdict. Respondent argues that the federal rule as to a directed verdict rather than that of our state courts should control in such a case as this involving injuries under the Safety Appliance Act and the Federal Employers’ Liability Act. But even admitting respondent’s contention and adopting the pronouncement of the federal court in