Burch v. Atchison, Topeka & Santa Fe Railway Co.

California Court of Appeal Nov 8, 1943 No. Civ. No. 3231Published

Before: Barnard

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Holding. The court held that the trial court erred in directing a verdict for the defendant because the plaintiff presented substantial evidence that the running board was insecure, creating a question of fact for the jury.

Issues

Whether there was substantial evidence that the running board was insecure within the meaning of the Federal Safety Appliance Act.
Whether the trial court erred in directing a verdict for the defendant when conflicting evidence existed regarding the condition of the running board.

Disposition. reversed

Quotations verified verbatim against the opinion

“The fact that he did not see the object or know what it was may have a bearing on the weight of his evidence but does not destroy his previous testimony which was direct and positive to the effect that he caught his foot on something.”

“there is substantial evidence in the record which, if accepted by the jury, would have supported a judgment for the plaintiff. It follows, under well established rules, that a question of fact was presented and that it was error to direct a verdict”

BARNARD, P. J. This is an action for damages brought by an employee against a common carrier engaged in inter[288]state commerce, being based upon an alleged violation of section 11 of the Federal Safety Appliance Act. (45 U.S.C.A., see. 11.) That section provides, in part, that “All cars requiring . . . secure running boards shall be equipped with such . . . running boards. ’ ’ The plaintiff appeals from a judgment which was entered after the court directed a verdict in favor of the defendant. The sole question presented is whether or not there was any substantial evidence tending to prove that the running board on top of a certain freight car was insecure within the meaning of the provision to which we have referred.

About 1:15 a. m. on the morning of February 22, 1942, the appellant was engaged in switching freight cars in the respondent’s yards at Barstow. The car in question was an ordinary freight car, equipped with a running board along its top consisting of planks laid end to end and three planks wide, the planks being bolted at frequent intervals to crosspieces, with bolts having screw heads and with nuts on the other end. Apparently, the heads of these bolts had originally been countersunk so that they were flush with the surface of the running board. This particular car had been sideswiped at Needles a short time before and was being taken to San Bernardino for repairs, with a tag upon it indicating that it was in bad order but that it could be moved.

At the time in question this car had just been “kicked” onto a side track and was rolling in a westerly direction. It was the appellant's duty to ride the car “into the clear” and then to stop the car by means of a hand brake. The appellant boarded the car at its westerly end, carrying an electric lantern, and then proceeded along the running board in a direction opposite to that in which the car was moving in order to reach the hand brake which was at the easterly end of the ear. As he neared that end of the car he fell, his body being thrown over the end of the car and down to the track below, with resulting serious injuries. He had not set the brake and the car was stopped by running into another car. It is appellant’s contention that he caught his foot on a raised bolt or screw on this runway, which caused his fall.

The appellant testified that he was walking along this runway at “a pretty fair clip’'; that as he neared the east end of the car he tripped either on a screw or a raised joint in the boards, but he thought it was a screw; that he was just walking and tripped; that he was so near the end of the car that when he fell he went over the end; that he did not

Burch v. Atchison, Topeka & Santa Fe Railway Co.

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