Coray v. Ogden Union Ry. & Depot Co.

PRATT, Justice. This case comes before this court on an appeal from a jury verdict and judgment of the lower court in favor of the plaintiff and against the defendant in the amount of $40,000. The defendant and appellant alleges error by the lower court which raises the question of the sufficiency of the evidence to support the verdict. This action is governed by the Federal Employers’ Liability Act, 45 U. S. C. A. § 51, the pertinent section of which is as follows: 45 U. S. C. A. § 51, “Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his- or her personal representative, for the benefit of the surviving widow or husband and children of such employee; * * * 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, track, roadbed, works, boats, wharves, or other equipment.” The greater part of the evidence in the case is uncontra-dicted. It shows the following facts: The deceased, a man 30 years of age, weighing between 180 and 190 pounds and in good health, was on the night of his death working with a switching crew in the Ogden Union Railroad Yards at Ogden, Utah. The switching crew was composed of the following persons; Wilson, foreman; Walker, engineer; Schofield, fireman; Cude, pinpuller; York, fieldman; and Conine (deceased), fieldman. The switching operation in which the crew was engaged, involved the kicking of freight cars from a track known as U. P. lead track No. 21 onto what *543 are known as hold tracks. Conine and York as fieldmen were stationed at switches leading from the auxiliary lead tracks into the hold tracks. Conine was to take care of lining the switches on hold track Nos. 1, 2 and 3, setting the brakes on the freight cars which were kicked onto those tracks and was to keep said cars from running out of the hold tracks to the north. York was to do the same on hold tracks Nos. 4, 5, 6 and 7. All the tracks in use in the switching operation slope slightly to the north; that is the direction from which the cars were kicked on the night of the accident. As a consequence, the cars on the hold tracks would, unless braked or blocked, run out to the north. A “kicked car” as that term is used by railroad workmen, means a car which after being pushed by the engine to the required momentum is cut loose to coast to position. In the instant case, these cuts were so handled. It is done by signal from the switch foreman upon which signal the engine is stopped and the cars allowed to proceed along the tracks under their own momentum. The switching crew had kicked some cars from U. P. No. 21 onto hold tracks 1, 2, 3, 4, 5, 6 and 7, and at about 2 :10 a. m. the engine had coupled to it three cars loaded with wheat which were all to be put on hold track No. 2. Mr. York was in the vicinity of the switch which controlled his share of the tracks, and Mr. Conine was about 20 feet away on the west side of hold track No. 2 talking to Mr. York. The kick was executed at a speed which is somewhat in conflict. Walker, the engineer, estimated 10 to 12 miles per hour; Wilson, the foreman, estimated 4 to 5 miles per hour. At any rate, York saw the cut of three loaded wheat cars come even with Conine and saw Conine either on, or going to get on, the first car of the cut as it proceeded south onto hold track No. 2. York heard a collision as the kicked cut came into contact with the car or cars on hold track No. 2 and saw “Mr. Conine’s light come down off the cars.” York thought it came off the first car of the three car cut as it proceeded south. York ran over to the light and discovered Conine’s body. Conine’s body was lying on the stomach with his head down under his chest. *544 There was a big- gash in his head. The body had been dragged about 26 feet as was shown by the marks on the ground along side the east rail of hold track No. 2 — the side of the tracks opposite where Conine was standing talking to York. There was some blood back at the beginning of the drag marks and a spot of blood where the body finally came to rest. The body was lying parallel to the rails the near side being about five inches from the east rail. It was at about the center of the middle car of the three loaded cars which had just been kicked. It had been dragged by some part of the cars catching in the back of Conine’s jumper — his jumper was gathered up around his shoulders. Conine’s cap and lantern were near the spot where the drag marks started. If Conine were dislodged from the end of the southermost car of the kicked cut of cars when it came into collision with the car or cars on hold track No. 2, as the testimony seems to indicate that he was, the. cars proceeded up hold track No. 2 a distance of between 85 and 90 feet after the impact before they came to rest. This distance is determined by measuring the distance from the south end of the kicked cut to the point where the drag marks of Conine’s body begin. The kicked cut of cars and the other three cars on hold track No. 2 at the time the kicked cut entered said track were examined by the railroad officials after the accident. All six cars were coupled together and the brakes on the southern most car were set as were the brakes on the northernmost car — set by York after the accident. None of the six cars had been moved between the time of the accident and the time the officials examined them. They discovered that the six cars were all in good mechanical condition. They also found that something had very recently wiped some dirt and grease from the east wheels and trucks of two of the cars and from the south and east wheel and truck of a third car. It looked to the officials as if the dirt and grease had been wiped by a cloth. The parts wiped were so near the ground that Conine’s body could have wiped off the dirt *545 as the ears passed it. The relative position of these three cars to the other cars on the tracks is especially significant. They were: The car with which the kicked cut of cars coupled when the collision occurred, the lead car on the kicked cut and the middle car of the three car cut. Only the front wheel and truck of this latter car was wiped and said wheel and truck were the only ones on that car that had passed Conine’s body. It would seem that from this evidence the defendant intended to show that the northernmost car on hold track No. 2, before the collision, had passed Conine’s body after it was on the ground — no one examined Conine’s clothing to ascertain if it showed grease or dirt marks. This evidence produced by the defendant, if accepted by the jury at its face value, would tend to show that York must have been mistaken when he testified that Conine, immediately before the collision, was on or getting on the cut of kicked cars. The time element and distances involved are such that as a practical matter Conine could not have been on or getting on the kicked cut of cars when they came between him and York and a few seconds later, i. e., at the moment of impact be on or in front of the northernmost car of the three cars at that time on hold track No. 2. Incidentally, if the jury accepted the defendant’s evidence for the purpose for which it was offered and therefore believed that Conine was on the south end of the northernmost car of the cars already on hold track No. 2 when the collision occurred, from that they could find that the kicked cut of cars moved approximately 180' feet after the collision which would justify a further conclusion that the impact was with greater force than the plaintiff’s evidence indicated it to have been. Assuming that all the testimony given at the trial by both the witnesses for the plaintiff and those for defendant was accepted by the jury as true, the effect would be to create uncertainty as to just how and from what Conine fell. The jury, however, because of this uncertainty would not be precluded from finding in favor of the plaintiff. It *546 would be their duty to reconcile the conflict in the evidence if possible, and if they could not they would be free to accept either the testimony of York, the fieldman, or the testimony of the officials who examined the cars involved after the accident. Or if they chose they might accept all the testimony and reject as improbable part of the inferences that might be drawn from that testimony. In this selecting process the jury, as reasonable men, would be determining what the preponderance of the evidence proved. If there is evidence from which the jury, as reasonable men, can find the existence of a disputed fact, it is not speculation simply because there is equally strong evidence from which they could have arrived at an opposite conclusion. The law of the United States covering this situation is as stated by Mr. Justice Douglas in the case of Ellis v. Union Pacific Railroad Co., 67 S. Ct. 598, 600: “The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Lavender v. Kurn, supra, [327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916]. Once there is a reasonable basis in the record for concluding that there was negligence which caused the injury it is irrelevant that fair-minded men might reach a different conclusion. For then it would be an invasion of the jury’s function for an appellate court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. Lavender v. Kurn, supra, 327 U. S. at page 652, 66 S. Ct. at page 743 [90 L. Ed. 916].” In the case at bar the jury may have reconciled all the evidence by simply finding that the wiping was not done by 'Conine’s body. Or, if they believed that it was done by his body, they may have disbelieved York when he said he saw Conine just before the cut of cars came onto hold track No. 2 and found that Conine was on the cars on hold track No. 2 at the time the kicked cut came into collision with them and that he was there in the performance of his duties as fieldman and exercising due care for his own safety, but that the impact was so great as to dislodge him. *547 It is admitted that at the time of the accident the deceased was engaged in the performance of his duties and where there is no evidence as to just how the accident occurred, as would be the situation here if the testimony of York is disbelieved in its entirety, the decedent would be presumed to have been exercising due care for his own safety at the time of the accident. Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Looney v. Metropolitan R. Co., 200 U. S. 480, 26 S. Ct. 303, 50 L. Ed. 564; Atchison, Topeka & Santa Fe R. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281, 283, 74 L. Ed. 896. It seems to be agreed by both parties in this case that kicking cars at such a rate of speed that they will travel beyond a point on the tracks where the switch foreman knows that said tracks are clear is a dangerous operation, i. e., it is a negligent operation, and that damage might be caused either to equipment or personnel by such kicks. There is ample evidence in this case from which the jury could have found that the kick here executed traveled beyond a point Wilson, the switch foreman, knew or should have known was clear, and further that the kick traveled past the track which was clear and came into collision with another car or cars then on said track. And as a final step the evidence is sufficient to support the necessary finding that as a result of this negligent operation Uonine met his death by having been dislodged from his position on the kicked cars or on a car then on hold track Ño. 2 by the impact or collision between the said kicked cut of ears and the car or cars then on hold track No. 2. The fact that the jury might have some difficulty determining just which car deceased rode at the time, does not relieve the situation from an operation which could be characterized as unanticipated or as being without the normal in that the speed or force of this kick was excessive. See our discussion in the case of Ayres v. Union Pacific R. Co., 111 Utah 104, 176 P. 2d 161. The judgment of the lower court is affirmed. Costs to the respondent. *548 McDO'NOUGH, C. J., and WADE, J., concur.