Casson v. Atchison Topeka & Santa Fe Railway Co.

CRAIG, J.

The defendant appealed from a judgment entered upon the verdict of a jury awarding to the plaintiff, its employee, damages alleged to have been sustained in rescuing a fellow employee from imminent peril.

The appellant was engaged in transporting passengers and freight in interstate commerce between points in the state of California and eastern terminals, and maintained a system of signals which were operated by wires suspended upon poles along its right of way. One Walter P. Springs, a lineman of the defendant company, was injured while working at the top of a pole. Casson, also a lineman, ascended the pole, caused a rope to be thrown over a cross-arm, placed it about Springs’ body, and proceeded to descend with the latter on his shoulder, while several employees in turn held a portion of the weight and aided in lowering him by said rope, which they dealt out from the ground. During said descent respondent slipped at times, due to insecurity of spurs which he attached to the pole at each step, temporarily relieving him of the weight of the burden, which again was precipitated upon him as release of the rope permitted. In his complaint respondent alleged: “That the said employees holding the said rope in the lowering of the body of the said injured man did so in such a careless, negligent and unlawful manner that the entire weight of the injured man was thrown in a sudden and unexpected manner upon the plaintiff, whereby and because whereof plaintiff’s spurs were caused to come out of the said signal pole and he was caused to slip down the said signal pole a

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short distance, and that the said employees again further carelessly, negligently and unlawfully failed and neglected to hold the said rope taut and to support the body of the said injured man, whereby the same was caused to again fall upon the plaintiff with great force and violence, whereby he was injured.”

The respondent’s evidence is entitled to be viewed upon appeal in the light which most strongly tends to establish a want of such ordinary care as was chargeable to the appellant under the circumstances of the particular case. But it was the duty of the plaintiff upon the trial to prove by a preponderance of evidence that his injuries resulted from careless and negligent dropping or throwing of Springs upon him with force and violence, by a failure to hold the rope. He testified: “The boys left the rope pretty slack, and I was carrying pretty near all the weight, and I hollered to them to keep the rope tight, that I could not carry the whole load; and I got under a heavy load and one of my spurs cut out and let me,—oh, I probably stepped down six or eight inches, when the whole weight of Mr. Springs got on my shoulders, . . . and in going down every little while I was receiving the load, so it would be light and then I would receive it again; they were trying to pay the rope out and give me a chance to get out from under him.” Another employee who had been discharged prior to the trial testified: “I was on the rope ... I know there were two or three others. ... I helped pay out the rope. . . . There was a jerk on the rope; I felt it. . . . I could see the pole, but I could not see what was going on very well, because I was in back. ... As I remember they fell together to the ground . . . Mr. Springs fell on top. It got away from us. . . . Q. Do you know what caused that rope to get out of your hands? A. No.” This witness further said: “I don’t know if I let go of the rope entirely or not, but I know we lost control.” The respondent admitted: “I was excited, . . . certainly I was excited.” The appellant stresses the fact that all other employees swore that the discharged lineman who testified as above recited was not one of the men holding the rope, and that the rope did not slip; that his testimony was influenced by personal bias. However, affording the conflicting evidence its most favorable view in support of the