APPEAL from a judgment of the Superior Court of the County of Navajo. M. T. Phelps, Judge.
Mr. Earl Platt, and Mr. Guy Axline, for Appellant.
Mr. Dodd L. Greer, Mr. David P. Jones, and Mr. Clifton C. Hildebrand, for Appellee.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[62 Ariz. 362] The plaintiff as administratrix of the estate of her husband, Richard L. Shumway, brought this action under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq., to recover damages on account of injuries and the death of deceased while employed as a brakeman for the defendant, Apache Railway Company. The case was tried before a jury, resulting in a verdict for $ 12,500 in favor of plaintiff, for which judgment was entered. It was alleged in the amended complaint, and admitted by defendant, that both the deceased and defendant were engaged in interstate commerce at the time of the injuries to the deceased, and it was also conceded that deceased was engaged in the regular scope of his duties as a brakeman at the time of the accident.
The facts alleged which pertain directly to the claimed negligence were as follows: Decedent was climbing down from the brake platform of an 81,000 series gondola car which was so carelessly and negligently [62 Ariz. 363] maintained and equipped as to cause the deceased to encounter an obstruction to his footing, as a direct and proximate result of which he was caused to, and did, sustain the injuries which resulted in his death. The obstruction which caused decedent to fall consisted in the placing of the uncoupling lever on top of and over the end sill of the car, thus failing to provide the customary footing maintained for the safety and convenience of trainmen on such cars. The 81,000 series cars are unlike all other similar gondola cars in that in other such cars of different series the uncoupling levers are placed under the end sill.
The defendant put in issue the facts so alleged; it also challenged the sufficiency of the amended complaint by motions to dismiss, and for summary judgment. At the close of the evidence the defendant moved for a directed verdict in its favor, and for a similar verdict at the close of the whole case. Following the judgment, motion was made by the defendant to vacate and set aside the verdict and judgment, and to have judgment entered in its favor. Motion for new trial was also seasonably filed. For all practical purposes these motions raised only one question, and the position of defendant may be summarized as follows:
The uncoupling lever so constructed and placed on the top of and over the end sill fully complied with the Safety Appliance Act of Congress, and with the orders, rules and regulations of the Interstate Commerce Commission. No defect in the equipment was alleged or shown. Compliance with such act and orders of the commission constitutes, as a matter of law, the reasonable care required to furnish the employee with a safe place to work, and absolve the defendant from all liability. Equipment so placed is deemed safe to operate and the decision of such ultimate fact rests solely with the commission, and the jury cannot be permitted to substitute its judgment in lieu of the judgment of the commission upon whom the law places the responsibility [62 Ariz. 364] for such determination. All these motions were denied by the court.
The defendant appears here as appellant, the plaintiff as appellee. Throughout this opinion the parties will be referred to, respectively, as plaintiff and defendant.
Briefly the facts adduced at the trial are as follows: The accident happened on March 26, 1942, between 8:30 and 9 o'clock in the evening. The deceased was an experienced, capable trainman. He had assisted in running a train for defendant from Holbrook to McNary. When the train arrived at McNary it was necessary to switch cars. The tracks at that point ran in a northerly and southerly direction. The gondola car was disconnected from the other cars and "kicked" in a northerly direction onto track number 4. The deceased uncoupled this car and rode it a short distance to set the brake. The car was stopped on the easterly side of a loading platform approximately 6 feet high, with a clearance of approximately 8 inches between the platform and car. The brake was located to the left end center of the car and towards the side of the car next to the platform. To apply the brake, the deceased had to stand on the platform about 2 1/2 feet above the sill. The uncoupling lever was placed on the top of this
sill, running from near the left end of the car to the center directly under the brake platform. This uncoupling lever consists, for practical purposes, of one piece -- the handle on the end, a round iron rod approximately one inch in diameter that runs along the sill to the pin lifter at the center end of the car. This pin lifter extends from the sill out over the coupler, and when operated to disconnect the coupler rises above the end sill and interferes with the footing. The maintenance of the cut lever on top of the sill obstructs the footing. The round iron rod tends to cause the foot to turn when stepped upon. The type of car [62 Ariz. 365] originally constructed with the cut lever on top of the end sill over a period of years was being reconstructed, the lever being removed from the top and placed either at the end of, or underneath, the end sill. The maintenance of the lever on top of the end sill was uncommon, and no new equipment was being so constructed. After deceased had completed setting the brake, in order to alight it was necessary for him to step down onto the end sill. The westerly or left side of the car was within eight inches of the unloading platform, and it was, therefore, impossible for deceased to use the westerly grab irons. He had to jump either from the end sill of the car or cross it over the lever and pin lifter and climb down on the easterly stirrups or grab irons with which the car was equipped. He either hung his heel in or tripped on the pin puller or pin lifter, and was thrown from the car, sustaining injuries from which he later died. The deceased was survived by his widow and five children, all of whom were dependent upon him.
The pertinent portion of the Federal Employers' Liability Act, under which this action was brought, 45 U.S.C. A. § 51, provides as follows:
"Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tract, roadbed, works, boats, wharves, or other equipment."
The plaintiff's position is that her complaint and proof discloses that the operation by the defendant of a car equipped with an end sill obstructed by the use of the uncoupling lever, as alleged in the complaint and shown by the evidence, constituted negligence. This on the theory that since the deceased was required to [62 Ariz. 366] use the end sill of this car and the device obstructed the ...