Metz v. Southern Pacific Co.

THOMPSON, Acting P. J. The defendant has appealed from a judgment which was rendered against it, pursuant to the verdict of a jury, in a suit for damages for the death of plaintiff’s husband, Emil George Metz, which occurred in the course of his employment with the railroad company as a sign painter, as the result of the derailing of an alleged defective motor car which he was operating along the track in the vicinity of Tulelake. The suit was brought under the Federal Employers’ Liability Act. (45 U. S. C. A., sec. 51.)

To establish her cause of action the respondent relied chiefly on the doctrine of res ipsa loquitur. The appellant contends that the judgment is not supported by the evidence; that the principle of res ipsa loquitur has no application to the facts of this case, since the deceased person was in actual control and operation of the motor car at the time of the accident, and that the court erred in giving to the jury certain instructions.

The Southern Pacific Company is engaged in interstate ' commerce. It maintains a branch track from Klamath Falls, Oregon, in a southeasterly direction through the northeastern corner of California, to Sparks, Nevada. The accident occurred at a point between the stations of Tulelake and Alturas, in Modoc County, California, where the track is comparatively level. Mr. Metz was an able-bodied man forty-six years of age. He left surviving him the plaintiff, his widow, and a nineteen-year-old son who is enlisted in the United States Army at Honolulu. Mr. Metz had been employed by the railroad company, as a painter, for seventeen years. It was his duty to travel along the track within a designated district and to keep the railroad signs, adjacent to the track, freshly painted. For that purpose he was supplied by the company with a light motor car which he personally operated, and upon which he carried his equipment and materials. His motor car required [263]replacement. June 1, 1939, two weeks before the accident occurred, the company supplied him with a used Adams Motor Car, No. 2-A, which had been formerly operated by another employee in the vicinity of Black Butte. It was a gas-engine car weighing 385 pounds. It was of a type different from the one he was accustomed to use. There is no evidence the deceased was familiar with that model of machine. Before delivering this car to Mr. Metz, it was overhauled and repaired under the direction of Ernest W.. Carlton, the company’s motor car mechanic. There is some evidence this particular car was defectively constructed or adjusted and dangerous to operate. Although Mr. Carlton denied the statements, Mr. Sam Aldrich, a retired section foreman, who had formerly been employed with the company for forty-two years, testified that he had a conversation with Carlton at Dunsmuir on June 21, 1939, a few days after the accident occurred, in which he said the motor car which was used by Mr. Metz at the time of his accident “should have been put out of service because of its dangerous and defective condition. ’ ’ He further said that the car on that occasion had caused a lot of trouble and was not a safe car to operate. There is no evidence the deceased had any knowledge of that fact.