MacDonnell v. Southern Pacific Co.

NOURSE, P. J. Plaintiff had a verdict for $30,000 for damages for the death of her husband who was killed while employed as a member of a switching crew in the freight' yard of the defendant company. The action was brought under the Federal Employers’ Liability Act and charged negligence in the attempt to couple a group of standing freight cars. The defendant based its defense and rested its appeal on the main grounds that there is a failure of proof of negligence, and that the risk was assumed by the employee.

The facts are without material dispute. The only conflicts relied upon by the parties are more matters of interpretation and construction of the evidence than a conflict upon the facts. The deceased and another employee were walking to their work through the freight yard of the Southern Pacific Company, maintained at Bay shore just south of San Francisco, and attempted to cross a track upon which seven empty cars were standing. As they were in the middle of the track these cars were struck by a moving train of thirty-three cars for the purpose of making a coupling. The coupling failed, and the standing cars moved so suddenly that the deceased was unable to get clear of the track. His companion was struck by the edge of the first freight car but' immediately got to his feet, climbed to the top of that car, and gave a signal to stop the train. The cars were practically at a stop when the signal was given, the movement from the point of contact with the deceased being variously estimated as between forty-eight andi seventy-one feet. There is some dispute between the witnesses as to the speed of the cars at the time of the impact, as to the time when signals were given to [434]stop the main train, and as to the clearance which deceased and his companion gave in endeavoring to pass in front of the freight ear, bnt these do not affect the issues involved. The material facts are that the defendant was engaged in a common and routine railroad operation which was well known to all its employees and the nature of which was' in itself a warning of danger to them and of such a character that no other notice or warning could be required from the defendant. The defense of assumption of risk is based upon these facts and also on the rule of the company which specially required the employees to expect trains or cars to be moved at any time on any track, and the warning to such employees to take care to avoid injury to themselves or others which might arise from these conditions. The plaintiff’s case rests upon the theory that the coupling was not made in accordance with the rules and customary practice upon which the deceased relied when crossing the track.