Opinion
Rehearing Denied March 25, 1931
Hearing Granted by Supreme Court April 27, 1931.
Appeal from Superior Court, San Bernardino County; Benjamin F. Warmer, Judge.
Action by William A. Hoogbruin against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
COUNSEL
Bertrand J. Wellman, of Los Angeles, for appellant.
Robert Brennan, M.W. Reed, E.T. Lucey, Leo E. Sievert, and H.K. Lockwood, all of Los Angeles, for respondent.
OPINION
JENNINGS, J.
This is an appeal by plaintiff from the judgment of the trial court made and entered after it had granted the motion of defendant for a directed verdict at the conclusion of the trial wherein evidence on the part of both plaintiff and defendant had been presented. The action was one for the recovery of damages for the injuries sustained by plaintiff by reason of the alleged negligence of defendant in failing to provide a safe place in which to work and safe appliances for use by plaintiff, who was an employee of defendant.
At the time when the injury of which plaintiff complains was sustained by him, he was employed by the defendant in the capacity of head brakeman on a freight train operating between San Bernardino, Cal., and San Jacinto, Cal., and while he was engaged in unloading certain merchandise from a freight car of said train onto a station platform at March Field in the county of Riverside, Cal. The merchandise which at the time was being unloaded by plaintiff was merchandise which had been shipped from some point in the state of Oregon. For the purpose of conveniently unloading freight from trains of the defendant at the March Field depot two planks had been used. These planks were approximately 7 feet long, 6 inches wide, and 2 inches thick. The ends of the planks were placed on the depot platform and the other ends extended about 6 inches into the freight car from which freight was to be unloaded, thus making a sort of runway. The planks were so placed that there was a distance of not to exceed 2 feet between their inner edges. The plaintiff had on a number of occasions made use of these boards in unloading freight at the March Field depot. However, the evidence discloses that complaint had been made by plaintiff and the rear brakeman to the conductor of the train in regard to the use of the planks and that plaintiff had asked for a bridge. On the day on which plaintiff sustained his injuries, a piece of boiler plate approximately 4 feet long, 3 feet wide, and ½ inch thick, and weighing 75 pounds, was sent out by defendant to be placed on the planks. This boiler plate is generally referred to in the testimony of the witnesses as a steel apron. Plaintiff assisted in unloading it from the express car of the train onto the depot platform. This steel apron was then placed upon the two planks and it was at once apparent that it was not of sufficient length completely to cover over the aperture between the planks, and as it was finally placed, there remained an opening about 3 feet long and from 1½ to 2 feet wide at the ends of the planks near the depot platform. The testimony indicates that plaintiff thereupon objected to the use of the steel apron, declaring that he preferred to use the planks without the steel apron. The conductor, however, said that as long as the steel apron had been sent out they would use it, but that he would get another on the following day. Thereupon, the plaintiff procured a small merchandise truck from the depot and conducted it over the runway into the box car where it was loaded with about 250 to 300 pounds of merchandise. The plaintiff, walking backward, then pulled this truck so loaded, onto the runway and when the steel wheels of the truck came in contact with the steel apron the weight of the loaded truck shoved the plaintiff backward so that he fell in the aperture near the depot platform and sustained the injuries of which he complains.
The evidence discloses that at the time plaintiff was injured he was 28 years of age and had been employed on different railroads in various capacities for about 7½ years prior to his accepting employment with the defendant in the month of July, 1927.
It is alleged in the first paragraph of plaintiff’s complaint that the defendant is a corporation duly organized under the laws of the state of Kansas and engaged in the operation of an interstate steam railroad between the cities of Chicago in the state of Illinois and Los Angeles in the state of California. In the second paragraph of the plaintiff’s complaint it is alleged that on August 8, 1927, the date on which plaintiff was injured, he was transferring freight from a car containing interstate shipments onto the station platform of the defendant at March Field in the county of Riverside. Neither of these allegations is denied by defendant, and the record further discloses that at the time plaintiff was injured he was engaged in transferring merchandise shipped from some point in Oregon from a freight car of defendant onto the station platform at March Field. We have here, therefore, the case of an employee of a railroad engaged in interstate commerce, who at the time he was injured, was employed in interstate commerce. This state of facts brings the instant case squarely under the operation of the provisions of the Federal Employers’ Liability Act (45 USCA § § 51-59). And this act is the exclusive remedy, as was pointed out by the Supreme Court of California in the case of Hines v. Industrial Accident Commission, 184 Cal. 1, 192 P. 859, 14 A.L.R. 720.
Since the Federal Employers’ Liability Act provides the exclusive remedy in a case of this character, the question of substantive liability is to be determined by the provisions of the act and federal decisions construing such provisions. That all state laws upon the subject of the employer’s liability to the employee in interstate transportation by rail have been superseded by the federal act, since congress by its enactment took possession of the field of such liability, was unequivocally announced in the case of Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475, 8 N.C.C.A. 834. Our own Supreme Court has likewise so declared in the case of Smithson v. Atchison, etc., Ry. Co., 174 Cal. 148, 162 P. 111, wherein numerous decisions of the United States Supreme Court were cited and it was clearly decided that in actions brought in the state courts under the provisions of the Federal Employers’ Liability Act, the decisions of the Supreme Court are controlling in the construction of the act. This was also the holding of the California Supreme Court in the case of Hines v. Industrial Acc. Com., 184 Cal. 1, 192 P. 859, 14 A.L.R. 720. The same conclusion was reached by the Appellate Court of California for the Second Appellate District in the case of Werner v. Southern Pacific Co., 44 Cal.App. 76, 185 P. 1016. Authorities might be multiplied on this point, but perhaps it is nowhere more clearly stated than by the Supreme Court of Washington in the case of Bolch v. Chicago, etc., Ry. Co., 90 Wash. 47, 155 P. 422, 426, wherein the court said: "We shall not review the many decisions of the state court cited by respondent, since in any event we are bound by the federal decisions, and especially the recent decisions of the United States Supreme Court upon the subject."
Having arrived at the conclusion that in the instant case the Federal Employers’ Liability Act furnishes the exclusive remedy and that the question of substantive liability is to be determined by it and that we are bound by the construction placed upon its provisions by the federal courts, we shall next consider whether the trial court erred in granting respondent’s motion for a directed verdict at the conclusion of the trial. The solution of this problem involves a determination of whether under the facts delineated in the record it may be said as a matter of law that the appellant assumed the risk of using the particular appliance which it is claimed was defective and through whose use appellant received the injuries of which he complains. For the purposes of this decision it may be assumed that the appliance was defective, in that the so-called steel apron was not of sufficient length entirely to cover over the aperture between the planks that were placed to form a sort of runway between the freight car and the depot platform; that an opening about 3 feet in length and not more than 2 feet in width remained near the depot platform; that appellant observed the defectiveness of the runway and objected to the use of the steel apron, declaring that he preferred to use the planks as had theretofore been done without the steel apron; that the conductor of the train, who was appellant’s superior, stated that since the steel apron had been sent down it would be used, but that another apron would be provided on the following day. Under this state of the facts it is earnestly contended by appellant that he did not as a matter of law assume the risk of using the defective runway and that the trial court erred in refusing to submit to the jury the question of whether or not appellant had assumed the risk.
The rule of the common law with respect to the assumption of risks of employment is declared by Mr. Justice Pitney in the case of Arizona Copper Co. v. Hammer, 250 U.S. 400, 39 S.Ct. 553, 556, 63 L.Ed. 1058, 6 A.L.R. 1537, as follows:
"It is to be borne in mind that the matter of the assumption of the risks of employment and the consequences to flow therefrom has been regulated time out of mind by the common law, with occasional statutory modifications. The rule existing in the absence of statute, as usually enunciated, is that all consequences of risks inherent in the occupation and normally incident to it are assumed by the employee and afford no ground of action by him or those claiming under him, in the absence of negligence by the employer; and even risks arising from or increased by the failure of the employer to take the care that he ought to take for the employee’s safety are assumed by the latter if he is aware of them or if they are so obvious that any ordinarily prudent person under the circumstances could not fail to observe and appreciate them; but if the employee, having become aware of a risk arising out of a defect attributable to the employer’s negligence, makes complaint or objection and obtains a promise of reparation, the common law brings into play a new set of regulations requiring the employer to assume the risk under certain circumstances, the employee under others."
In support of this statement of the rule the court cites the case of Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, at page 640, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475, where it is said:
"When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employee, relying upon the promise, does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise."
It is the exception to or modification of the general rule providing that in those cases where there is a promise of reparation upon which the employee relies during such time as may be reasonably required for its performance upon which appellant relies and which he contends warrants a reversal of the judgment in the instant case.
In opposition to appellant’s position, respondent contends that assuming that the record herein discloses clearly and unequivocally a promise of reparation by the employer and a reliance on such promise by the employee, nevertheless the appellant must fail in his appeal because the appliance of whose defectiveness he complains was a simple appliance with which he was entirely familiar and whose defects were patent and obvious to him. That he was aware of the defective condition of the runway can scarcely be said to be open to doubt inasmuch as the record discloses that appellant testified that he objected to the use of the steel apron, declaring that he preferred to use the planks without the apron.
It is to be borne in mind that not only was the device or appliance of whose defectiveness appellant complains a simple one, but that appellant was a man of at least 7½ years’ experience in railroad work, a mature man, and that he had on a number of occasions utilized the two planks hereinabove described for the purpose of unloading freight at the place where he suffered the injuries of which he complains.
Taking all the facts and circumstances shown into consideration, it would appear to be a proper case for the application of the simple tool doctrine. As was said by the Supreme Court of Ohio in the case of McGill v. Cleveland & S.W. Traction Co., reported in 79 Ohio St. 203, 86 N.E. at page 989, 992, 19 L.R.A.(N.S.) 793, 128 Am.St.Rep. 705: "He was familiar with and appreciated its condition and defects, all of which were alike open to his observation and within his comprehension, and it would seem from the averments of his petition that he was so impressed by this defective and unsafe condition that he not only complained of the same to his foreman, but to the master mechanic as well. Plaintiff knew as well as the foreman, master mechanic, or master that said stepladder in its then condition could not be used with any assurance of safety, and, having such knowledge he must be held to have assumed the risk of its use. To hold the master liable to an employee, under such circumstances, for injuries resulting to the latter from the use of so simple an implement or tool as an ordinary stepladder would be to extend the rule of respondeat superior beyond its reasonable limit and to apply it as never intended." The efficacy of the simple tool doctrine has been recognized in the following cases: Marsh v. Chickering, 101 N.Y. 396, 5 N.E. 56; Meador v. Lake Shore & M.S. Ry., 138 Ind. 290, 37 N.E. 721, 46 Am.St.Rep. 384; Corcoran v. Gas Light Co., 81 Wis. 191, 51 N.W. 328; Kistner v. American Steel Foundries, 233 Ill. 35, 84 N.E. 44; Gunning System v. Lapointe, 212 Ill. 274, 72 N.E. 393; G., C. & S.F. Ry. v. Brentford, 79 Tex. 619, 15 S.W. 561, 23 Am.St.Rep. 377; Brewer v. Tenn. Coal, Iron & Ry. Co., 97 Tenn. 615, 37 S.W. 549; St. Louis, etc., R. Co. v. Kelton, 55 Ark. 483, 18 S.W. 933; McCormick Harvesting Machine Co. v. Casimir Wojciechowski, 111 Ill.App. 641; International Packing Co. v. Kasimir Kretowicz, 119 Ill.App. 488; Webster v. Nisbett, 205 Ill. 273, 68 N.E. 936; Ohio Valley Ry. Co. v. Copley, 159 Ky. 38, 166 S.W. 625; York v. Rockcastle River Ry. Co., 215 Ky. 11, 284 S.W. 79. In a number of these cases the facts respecting the defective appliance complained of bear a rather startling resemblance to the facts disclosed by the record in the instant case.
A number of California cases are cited by appellant as supporting his contention that the trial court in the instant case should have submitted to the jury the question of assumption of risk. These authorities deserve consideration. In Notthoff v. L.A. Gas & Electric Co., reported in 161 Cal. at page 93, 118 P. 436, the Supreme Court of California decided that the trial court erred in granting a nonsuit on the ground that no reasonable inference could be drawn by the jury from the evidence introduced at the trial by plaintiff that plaintiff, in complaining of the unsafe condition of the premises where he was working was doing so on his own behalf as well as on behalf of men working under his direction, the Supreme Court holding that under the state of the evidence, the question of whether his complaint was made on his own behalf as well as on behalf of the workmen was one of fact for the jury. The opinion of the court as reported does not indicate that the simple appliance doctrine was suggested and at no place in the decision is it mentioned or discussed. The case of Anderson v. Seropian, reported in 147 Cal. at page 201, 81 P. 521, was a case where a defective stamping machine was being operated by a young man, inexperienced in its operation, who notified his employer of the defectiveness of the machine, but continued to operate it, relying on the employer’s promise to repair it. The Supreme Court held that the questions of whether the employee in continuing to operate the machine, under promise to repair, and incurring the risks incident thereto, was acting as a reasonable and prudent man would act and whether the employee’s complaint was made and the employer’s promise given by reason of fear of increased danger in the use of the machine and whether the employee was induced to remain in employment by reason of the promise to repair were questions of fact and were properly submitted to the jury by the trial court. At no place in the court’s opinion is the simple tool doctrine considered and from the description of the machine contained in the reported opinion, it is hardly conceivable that it could be embraced in the rather close confines of the doctrine. In the case of McGuire v. Miller & Lux, Inc., reported in 178 Cal. at page 644, 174 P. 898, the plaintiff, 24 years of age, who had little experience with machinery, was employed by defendant as an oiler on a caterpillar tractor whose machinery was by the court stated to be rather intricate. Certain parts of the machinery of the tractor used in its lubrication became defective and their defective condition was called to the attention of the engineer in charge of the tractor by the plaintiff. The engineer agreed to repair the defective machinery as soon as he could get around to it. On the same day plaintiff, while attempting to clean the defective parts of the machinery, suffered injuries. At the conclusion of plaintiff’s case, defendant moved for a nonsuit, which motion was denied, and the defendant declining to present any evidence, the case went to the jury, which returned a verdict for plaintiff. On appeal it was contended by the defendant, appellant, that the evidence presented by plaintiff showed him to have been guilty of such gross negligence as to have precluded recovery as a matter of law. The Supreme Court held that the question of plaintiff’s negligence was, under the circumstances shown, a question of fact for the jury. Among the circumstances specifically mentioned by the court is the lack of experience of the plaintiff in respect to what is termed intricate machinery. It is therefore obvious that this case is one of intricate machinery operated by an inexperienced employee, a state of facts that left no possibility for the application of the simple tool doctrine which so far as appears was not suggested. The case of La Fleur v. M.A. Burns Lumber Co., 38 Cal.App. 279, 176 P. 58, is one wherein the machinery operated by the injured employee was complicated machinery characterized by the finding of the trial court as dangerous to operate. This finding of the trial court was said by the Appellate Court to have been abundantly supported by the testimony. This case therefore presented no facts which permitted the application of the simple tool doctrine. The case of Hawley v. L.A. Creamery Co., 16 Cal.App. 50, 116 P. 84, was one where the lines used by the driver of a milk wagon in guiding and checking the team of horses drawing the wagon were defective and the manager of the employer promised to repair them. Within two weeks after the promise to repair had been made and while it was still unfulfilled the employee was injured by reason of the defective lines parting and the team thereby becoming unmanageable. The Appellate Court sustained the finding of the trial court that the employer was negligent in failing to provide suitable and proper appliances. It would appear that the circumstances of this case might well have justified the application of the simple tool doctrine, but the record fails to disclose that it was presented for the consideration of either the trial or appellate courts. In Diehl v. Swett-Davenport Lumber Co., 14 Cal.App. 495, 112 P. 561, an employee operating a planing machine in a lumber mill slipped into a hole in a platform attached to the machine and sustained injuries. The evidence disclosed that the defect in the platform was known to the employer’s superintendent, who promised to repair it. The Appellate Court held that the trial court was not in error in refusing to charge the jury that an employee may rely on a promise to repair only for so long a time as is reasonably necessary to accomplish the reparation, holding that the promise to repair was definite and referred to the completion of work in which employer was engaged from the time the promise to repair was made until the accident occurred. There was no suggestion of the simple tool doctrine and it is not adverted to or considered by the Appellate Court in its opinion.
We have reviewed at some length the California authorities cited by appellant because in some cases it may appear that the simple tool doctrine has been considered and rejected by our courts. Careful analysis of appellant’s California authorities convinces us, however, that in those cases wherein the narrow limitations of the doctrine would have permitted its application, it has not been considered. It is true that in some jurisdictions the doctrine has been definitely rejected as is noted in 39 Corpus Juris p. 761, § 959, where the author states as follows: "Except in a limited number of jurisdictions, it is very generally held that a servant assumes the risk of injury from defects and dangers in what are commonly designated as simple tools and appliances." The courts of Missouri and North Carolina appear to have declined to apply the doctrine. The general rule of non-assumption of risk of defective appliances by an employee after a promise by the employer to repair is said by the author of Corpus Juris to have been held to have no application where the servant is engaged in common labor with tools or appliances of simple construction except in a limited number of decisions. 39 Cor.Jur., p. 790, § 988. Among the decisions cited by the author wherein the doctrine thus announced has been rejected appears the case of Brouseau v. Kellogg Switchboard & Supply Co., 158 Mich. 312, 122 N.W. 620, 27 L.R.A.(N.S.) 1052, cited by appellant.
This general rule that imposes upon an employee in common and ordinary labor who, with full knowledge of the obvious defects of a simple appliance, the burden of assuming the risks incident to the use of such an appliance, even where the employer’s attention has been called to the defects and he has promised to remedy them, would appear to be based upon sound public policy and a proper conception of the reciprocal duties of employer and employee.
With respect to the matter of the propriety of the trial court’s granting a motion for a directed verdict the California rule in this regard appears to be stated correctly and comprehensively in the case of Bannister v. L.A. Ry. Corp. (a corp.), 203 Cal. 427, 429, 264 P. 756, 757, where it is said:
"The rule governing the power and propriety on the part of the trial judge in the matter of granting a nonsuit at the conclusion of the whole testimony in the case is clearly and correctly stated in the Matter of Estate of Caspar, 172 Cal. 147, 155 P. 631, wherein it is declared to be the rule that the right of the court to direct a verdict and the right of the court to grant a nonsuit at the conclusion of the evidence in the case are absolutely the same, and that the court may grant such a nonsuit only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such verdict were given."
The action of the court in passing upon a motion for a directed verdict would seem to be a matter of practice governed by the rules of procedure in effect in the courts of the state where an action of this character is brought.
It is contended by respondent that appellant has not perfected his appeal herein for the reason that this notice of appeal states that he has appealed from the judgment of nonsuit in favor of defendant, whereas it appears that no such motion for nonsuit was made or argued, but that it does appear that a motion for a directed verdict was made by the respondent herein and was granted. It has been assumed in this decision that a proper appeal has been perfected and the determination of this question is not necessary to the decision on the merits of the case.
The judgment is affirmed.
We concur: BARNARD, P.J.; MARKS, J.