Civil No. 1898. Third Appellate District. November 15, 1918. ROSE KREITZER, as Administratrix of the Estate of Andrew Kreitzer, Deceased, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Defendant and Appellant.

[1] NEGLIGENCE-ACTION FOR DEATH-POSITION OF BODY-PRESUMPTION.In this action for damages for the death of plaintiff's decedent alleged to have been caused by the negligence of the defendant in not providing proper safety stations at which the deceased could have taken refuge from passing trains while performing his duties as bridge watchman, it must be presumed, notwithstanding the position occupied by the body of the deceased when found, that he was at the time of his death performing his duties and that he was taking "ordinary care of his own concerns".

[2] ID.-PLACES OF SAFETY-KnowledGE OF DECEASED NATURAL CHOICE.Under the facts of this case, it was only natural that the deceased should have resorted to one of the platforms on the bridge built for barrels as a means of escape from a passing train rather than to one of the caps to one side of the bridge, he having no knowledge as to the respective advantage of each as a place of safety.

[3] ID.-DUTY OF DECEASED TO GO ON BRIDGE ESTOPPEL.-Where the deceased was told to watch the bridge, but was not instructed how to do it, it was natural for him to assume that he was to patrol it, and after the accident the defendant company can not consistently urge that deceased should not have gone over the bridge, especially where they also take the position that the bridge was a safe place.

[4] ID. NEGLIGENCE OF DEFENDANT AND OF DECEASED QUESTIONS OF FACT FOR JURY.-Whether or not the defendant was negligent in failing to provide a safe place for the decedent to work, or whether the decedent was guilty of gross negligence in failing to select a place which was designed for safety and was safe, or, when placing himself in the position he selected, he failed to take ordinary precautions for his own safety, were questions of fact for the jury to determine.

[5] ID.-ASSUMPTION OF RISK-KNOWLEDGE OF DEFECT-BURDEN OF PROOF.— The decedent had the right to assume that the defendant has used due diligence to provide proper places of safety for the performance of his duties, and he did not assume the risk of the employer's negligence where such was not done. The burden was on the defendant to show that the deficiency was known to the decedent, or was so patent as to be readily observed by him, and that by continuing in his employment in the face of such knowledge, and without objection, he assumed the risk.

16 ID.-NEGLIGENCE OF DEFENDANT AS PROXIMATE CAUSE OF DEATH-QUESTION FOR JURY.-In this case, the evidence was sufficient to justify the submission to the jury whether the alleged negligence of the defendant was the proximate cause of decedent's death.

[7] ID.-VERDICT BASED ON LIFE EXPECTANCY AND EARNING CAPACITY——ALLOWANCE FOR DECEDENT-NOT EXCESSIVE.-It can not be said that the jury's verdict of $7,500 was excessive where the life expectancy of the deceased was over 17 years and his probable earning capacity $900 a year, since the jury reduced decedent's earning capacity nearly one-half and must have taken into account the cost of his living, clothing and shelter.

Appeal from the Superior Court of Stanislaus County-W. II. Langdon, Judge.

For Appellant-F. H. Gould, W. C. Fitch, E. H. Zion, Arthur Levinsky. For Respondent-Griffin, Carlson & Boone.

Plaintiff's decedent was employed by the defendant, on or about January 5, 1916, as night watchman to guard or watch the bridge or trestle belonging to defendant, crossing the Tuolumne river at a point about one mile south of the station at the city of Modesto. He had discharged his duties as watchman for four or five days when, as is alleged in the first amended complaint, on January 11, 1916, between the hours of 6 p. m. and 12 o'clock midnight of said day, and while in the performance of his duties as such night watchman of said railroad bridge, he "was struck upon the head and

body by one of the cars of a freight train which was crossing said railroad bridge" while traveling in a southerly direction, and was killed; that said railroad bridge "was and now is unsafe for any person to walk upon or travel over, due to the negligence of said defendant", because of the manner in which it is constructed, describing it; that there was and is no place on said bridge where deceased "could stand and remain at the same time that a train was crossing said bridge"; that the only places “in the nature of safety stations" were certain platforms about 25 yeards apart "upon which a person could step from said bridge proper"; that barrels filled with water were placed on these platforms and "occupied most of the room or space upon each of said platforms"; that the spaces between said barrels and trains or cars passing over said bridge "were of such a narrow width that it was impossible for the said deceased at the time he was so struck by said car of said freight train, or at any other time, to remain on said platform while a train was passing"; that deceased was killed by said freight train while on the second one of said platforms from the northern end of said bridge; that deceased had no notice or warning of the said approaching extra freight train; that at the time deceased was killed the defendant was engaged in interstate commerce and deceased was employed in such commerce and claims the benefit of the act of congress approved April 22, 1908, and acts amendatory thereof, relating to the liability of common carriers; that in the course of his duties it became necessary, and he was so instructed by defendant, to go upon said bridge and to walk upon the top of said bridge for its entire length.

The answer is a specific denial of the averments of the complaint and alleges that the death of deceased "was caused solely by and through a risk assumed by him in the course of his employment", and, furthermore, that his death "was caused by his own carelessness and negligence in failing to observe the approach of defendant's train while said train was upon the bridge referred to in plaintiff's complaint herein".

The cause was tried by the court with a jury and a verdict was awarded as follows: for the plaintiff in the sum of $7,500.00, apportioned as follows: To the widow, age 52 years, $3,750.00; to the child, Helen, age 16 years, $227.30; to the child, Mary, age 14 years, $454.50; to the child, Clara, age 7 years, $1,250.50, and to the child, William, age 5 years, $1,818.20. Judgment was accordingly entered. Defendant appeals from the judgment and from the order denying its motion for a new trial.

Witness Coburn held the position of track foreman on construction work for defendant and was foreman on the section including Modesto and the bridge or trestle where the accident occurred. He testified: "At the time that I arranged with decedent to go to work for the railroad company I went over to his house I think, to see him. I told him I wanted to hire a man to protect the bridge, and I wanted to put a watchman on there at night; that we had found dynamite underneath it, and that I wanted to put a white man there that I could depend upon. I told him the wages would be two dollars a night, and that he would have to work from six to six. I told him to use no arms, in case he met with some accident down there not to use any arms. He said, 'All right, I will do it.' I never saw him down there at work." No other or further instructions were given deceased. He had worked for other railroad companies and had previously worked for defendant company on that section, "doing ordinary track repairing, putting in new switches and changing rails and one thing and another like that and changing ties". He had been employed by defendant on that section for several months, in 1915, and in the course of his employment crossed this bridge two or three times a week on a hand car.

He was an active man, quick in his movements, in good health and possessing all his faculties. He was about 5 feet 4 inches in height and weighed about 140 pounds. He went to his work on the night of January 11, 1916, as usual, and appellant claims he was last seen alive about seven o'clock. Witness Dodd, watchman on the county bridge which crosses the Tuolumne river about 60 feet from the railroad bridge, testified that from his house he had a clear view of the railroad bridge. He testified: "I remember an occasion when someone purported to have found dynamite underneath the railroad bridge. After that, there was a night watch there. I saw him upon the bridge in the night. I remember the occasion when the body of Mr. Kreitzer was found. I went out to see the body on the bridge, and helped get the body cut. The night before that, I saw a person with a lantern upon the bridge between eight and nine o'clock. My usual hour of retiring is from half past eight to nine o'clock, sometimes a little bit after, owing to what I have got to do. Just before I retired, I came out and looked around and went back to bed. I saw a man upon the railroad bridge with a lantern. This was the night before I saw the body. I saw the man with the lantern just before I got ready to go to bed. The man with the lantern was about 200 feet from me, going south." It appeared that the trains passing through Modesto, south bound, were passenger train 50, which arrived at 8:37 p. m. and departed at 8:41 p. m.; the next was the second section of No. 50, which arrived at 8:47 and departed at 8:49 p. m. The next train south bound which passed the station was an extra engine, 2435, without stopping, at 9:03 p. m. The trains pass

ing south after midnight were one arriving at 3.30 and departing at 3:50; the next was an extra, 1656, going south, which arrived at 5:30 and departed at 5:50; the next was an extra, 1801, going south, arrived 6:30 and departed at 7:40. It was testified that it was not unusual that extra trains passed in the night, "it is an every-day occurrence”.

Witness Wood, coroner and public administrator for Stanislaus county, arrived at the scene of the accident between 7 and 8 o'clock the morning following the death of deceased. He testified: "I saw Mr. Kreitzer's body on the railroad bridge, at the end toward Modesto, on the left-hand side or east side of the bridge, the up-river side. The body was between the end of the timber and a water barrel. It was between 200 and 300 feet from the west (north) end of the bridge, and wedged in between the end of the timbers that projected out under the track and the water barrel that was resting on the extreme end of the timber, wedged in between the end of this timber and the water barrel. It was sitting in a crouched position, his feet drawn up under him and his head was leaning to the toward the south, toward the river; that is toward the south. I took the body out and took it to my place of business. I found marks or bruises on the right-hand side of the head. The bruises were near the front, but on the right-hand side. There were no other marks upon the body. There was nothing on his person except a pipe and something of those things. On the ground underneath there was a great deal of blood, also a lantern and his hat. These were lying directly under him, on the ground below. A lunch pail was found. The lunch was not eaten. I think Mr. Davis, the sheriff, found it. His back was up against the barrel, his head turned toward the south. He was hit upon the right-hand side of the head. The distance between the barrel and the end of the timbers that were against his breast was about 16 or 17 inches. The tie was against his breast and the barrel against his back. He was touching both barrel and tie, so close that we had to shove the barrel off in order to remove his body from between the tie and the barrel. The barrel was not attached to the timber.

It was full of water, and with some effort we succeeded in shoving it off onto the ground. His face was facing the railroad ties and the rails. When I took the body out, he was dressed heavy. It was cold as the present weather, except it was foggy weather. He had on winter underwear, ordinary shirt and coat and heavy storm coat and vest."

He

Witness Davis, sheriff of the county, helped to remove the body. testified that the body was about 250 or 300 feet from the Modesto end of the bridge. "His head was leading to the south, and his face toward the railroad track; his back was wedged in between the barrel and the timbers, in a squatting position. We had considerable trouble getting him out."

The bridge structure consists of a steel bridge proper crossing the Tuolumne river for about 150 feet at the south end and a trestle thence northerly for about a quarter of a mile, the roadbed being about 28 feet above the river bottom land. The structure is graphically shown by a sketch attached to appellant's brief, which appears to illustrate correctly the situation at the location of the accident and the general construction of the trestle. Figure I is a cross-section of the trestle at the cap where deceased met his death, showing the barrel, "a"; the end of the cap without any barrel, "b"; the location of the lowest step of a locomotive with relation to the bridge ties, "c". The plan of construction is given by witness Coburn, foreman of defendant's construction work: "First, piles were driven four in number in each set. The sets were fifteen feet apart center to center. Each set was driven in crosswise of the track. Across the top of each set of piles was placed a timber twelve inches by fourteen inches in diameter and twelve feet in length. On top of this cap were placed six stringers, three under each rail. These stringers are eight inches in thickness, sixteen and one-half inches vertical and are about thirty feet in length and run parallel with the track. The distance from the outer end of

the cap to the outer side of the outer stringer is two feet and two inches on each end. On top of these stringers are placed ties eight inches horizontal by six inches vertical, and nine feet in length, and placed four inches apart. On top of these ties are placed the steel rails, which are four feet eight and one-half inches apart and midway between the rail and the outer end of the tie is the guard rail, a small timber eight inches horizontal by five inches vertical, running parallel to the rail and mortised into the tie about one inch. Upon the end of every tenth cap, on each side of the trestle, is a small platform and on this platform is placed a barrel filled with water for use in case of fire. Between the barrel and the end of the ties is a space of sixteen or seventeen inches. The platform upon which the barrel is placed is just large enough to set the barrel on. About one hundred and fifty feet of the extreme southern end, where the bridge crossed the river, was made of steel and had no barrels."

The evidence was that the construction of this trestle was in accordance with the plans prevailing throughout the Southern Pacific system. The contention of plaintiff is that the defendant was negligent in failing to provide a safe place for the decedent to take refuge from passing trains. In other respects we do not understand that there is objection urged to the general construction of the bridge. So far as the public is concerned, there was no obligation upon the railroad company to provide safety stations. There was, however, a duty to make such provision for its employees, and its contention is that the ends of these caps, occurring on both sides of the track every fifteen feet, furnished such places of safety. Witness Burgess, supervisor of bridges and buildings for the defendant corporation, testified: "I am familiar with the methods employed by railroad men in getting out of the way on bridges of this kind when trains are passing. They simply get down on the cap, and sit there until the train passes, steadying themselves with a hand on the guard timbers at the end of the tie. That position involves no danger for a railroad man or for any man of ordinary activity with his faculties. A man can remove himself from the surface of the bridge, such as this, and seat himself on the tie as I have suggested in not over ten seconds, I should judge. I have done this, and that is the way that I in my practice as a railroad man adopt of removing myself from the platform of a bridge to a place of safety when trains are passing, and that is the ordinary way that railroad men in this section of the Southern Pacific take care of themselves when trains are pa sing on long bridges of this character. The ties are 4 inches apart, and the top of the tie is eight inches. There is no difficulty in walking at an ordinary rate of speed over these ties. The practice of placing a barrel upon a cap is for fire protection. I never observed any man under my supervision while working on these, bridges attempt to take refuge when a passing train came along on a platform on which the barrel is situated. I never attempted it." He testified that the distance from the end of the tie to the end of the cap is a foot and a half. "I would not want to stand there, to stand up. I would not call that a safety station in that position; not standing up." The distance from the top of the cap to the steps of a locomotive (see figure I) is four feet, showing that in a sitting position a man would be safe. The witness, Coburn, testified: "Whenever the train comes along, these caps are located about fifteen feet apart and we would scatter out and get on top of the caps that would be underneath the track like, sat on there while the train was passing over. I never had but one man that could not get down on the caps. No one ever made any objection to the method of getting down. That method of escaping from passing trains has been in use ever since my