Clary v. Southern Pacific Co.

WOOD (Fred B.), J. pro tem.* Plaintiff seeks damages under the Federal Employers’ Liability Act for personal injuries received while employed as a carman in defendant’s shops at Sparks, Nevada. The verdict was for the defendant and plaintiff has appealed. He claims insufficiency of the evidence and errors of law in the refusal of certain instructions.1

He was injured while engaged in the removal of a draft gear and yoke from a drop bottom gondola ear. The gear and yoke weighed about 400 pounds and rested on a tie strap which was riveted to the center sill of the ear.2

His foreman told him to assist two other workmen, Treadway and Grassini, on a track used for heavy repairs. He knew these men were engaged in removing a draft gear. He could see their activities from the place where he had been working. He had observed them trying to remove the draft gear from the east end of the car. They were still hammering to get the draft gear to drop down when he arrived. The coupler had been removed from the draft gear at the west end of the car. Plaintiff went on a personal errand and when he returned the two men were working on the west end of the car. The trucks had been removed and the car put on air jacks which later had been replaced by standees. [91]Treadway was underneath the ear burning the heads off the rivets that held the tie strap in place.

Treadway came out from under the car and Grassini said, “I believe this is going to be just as tough as the other end was to get down.” Plaintiff then took the drift pin and ball peen hammer which were at the job and crawled underneath the car to knock out the rivets. He put the pin against one of the rivets, hit it a couple of times, and the entire assembly broke loose and fell to the ground, thrusting the pin against the sill, pinching plaintiff’s hand.

He testified he did this job the same way he had observed others doing it at Sparks. Though he had never before removed a tie strap himself and had never received instructions as to how to remove a draft gear, he had seen others do it. Draft gears were removed quite often at Sparks. Upon deposition he had testified, first, that he had not helped drop draft gears many times before, he had helped put them up more than he had dropped them; then he said he could not remember having helped drop them before this occasion. He admitted he was an experienced carman. He had received his mechanic’s papers. He testified that a carman is a man that does all things about a freight car, repairing freight cars; he used a rivet gun, crowbar, reamer, sledge hammer; to be qualified to be a carman you are supposed to be able to do all those tasks.