DORIS ANDERSON, as Administratrix, etc., Appellant, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (a Corporation), Respondent, 31 Cal. 2d 117

SCHAUER, J. In this action plaintiff administratrix seeks damages under the provisions of

section 51 of the Federal Employers’ Liability Act (45 U.S.C.A.) for the wrongful death of her intestate, L. C. Bristow. When the matter came on for trial, defendant objected to the introduction of any evidence, on the ground that the complaint fails to state a cause of action. The objection was sustained, judgment was entered in defendant’s favor, and plaintiff appeals. The issue presented is forthrightly defined and the pertinent authorities are helpfully collected in the excellent briefs of counsel for the respective parties.

After careful consideration of the briefs and arguments, and after independent research which has disclosed nothing persuasive to a contrary result, we have concluded, for the reasons hereinafter elucidated, that under applicable legal principles the judgment must be affirmed. A motion to exclude evidence by reason of failure of the complaint to state a cause of action is in the nature of a general demurrer and may be sustained only if the allegations of the complaint, deemed true for this purpose, are totally insufficient to support a judgment in plaintiff’s favor. (See Rannard v.

Lockheed Aircraft Corp. (1945), 26 Cal.2d 149, 151 [157 P.2d 1]; Calhoun v. Calhoun (1947), 81 Cal.App.2d 297, 298-300 [183 P.2d 922].)

Section 51 of the Federal Employers’ Liability Act (45 U.S.C.A.) provides, so far as here material, that “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 such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. . . .” Plaintiff’s complaint, as amended, alleges in material part that on November 24, 1942, at about 5 :30 a. m., the deceased, L.

C. Bristow, who resided at Clovis, Curry County, New Mexico, was employed as a conductor on defendant’s passenger train which was then “westbound from Amarillo, Texas, to Belen, New Mexico, at a point approximately opposite defendant’s station at Gallaher, Curry County, New Mexico”; that as one of his duties deceased was then “checking a certain train order signal at said station from the rear vestibule of said train” and while so doing fell from the train and suffered injuries which “made it impossible” for him to secure help; that defendant’s train “then proceeded on past defendant’s stations at St.

Vrain, Melrose, Taiban and Ft.

Sumner until said train arrived at Teso, New Mexico; that at each of said stations said train was caused to come to a stop and at each point defendant, acting by and through its agents, servants and employees, other than decedent, carelessly and negligently failed to ascertain the whereabouts of decedent, notwithstanding the fact that certain employees of defendant on said train made note of the absence of decedent; that at Yeso the regular conductor of said train finally directed a wire to be sent to other employees of defendant asking such employees to ascertain the whereabouts of decedent and decedent was subsequently found lying alongside defendant’s right of way adjacent to the point where he fell off the train.

That when said message was finally transmitted to certain employees of defendant, at defendant’s station at Yeso, defendant, its agents, servants and employees, carelessly and negligently failed to transmit said message to Clovis, or any other station of defendant’s [sic], for an unnecessarily long period of time; that when said message was transmitted to Clovis, defendant, its agents, servants and employees at said station, carelessly and negligently failed to institute and pursue a search for decedent within a reasonable period of time.

That as a direct and proximate result of the carelessness and negligence of defendant in the premises, as aforesaid, and the exposure in very cold weather occasioned thereby, said L. C.

Bristow was caused to die on the 27th day of November, 1942.” Plaintiff states that on this appeal the issue presented is whether or not a railroad company “that has notice of the absence of an employee from a moving train is under a duty to use ordinary care to ascertain his whereabouts and render aid to him.” No allegation or claim is made that the deceased’s original injuries resulted from any negligence on the part of defendant, or its officers, agents or employees. (Nor, it is noted, does plaintiff allege that the train was moving at the time the deceased fell from it.

The allegations in respect to' the circumstances of the fall are, as previously set forth, that while the train was “at a point approximately opposite defendant’s station at G-allaher . . . [deceased was] checking a certain train order signal at said station from the rear vestibule of said train” and while so doing fell from the train.) There is no allegation that defendant company had notice or knowledge of the injuries of deceased in sufficient time to have rendered or procured aid that would have saved his life; there is not even an allegation that defendant had notice or knowledge that decedent had fallen from the train or had left it otherwise than intentionally while it was standing at the station mentioned.

Plaintiff argues “that under the law, as it stands today, from the moment that the master has notice of an injury to his servant and of the fact that the servant is unable to aid himself, and whether or not the injury has been caused .by any negligence of the master, the master is under a duty to use ordinary care to obtain medical and surgical aid for the employee.

If, as a result of a breach of that duty, the injuries to the servant are aggravated, or the servant dies, recovery is allowed,” and “that the time has come to expand this doctrine one step further and to impose a duty upon the employer to use ordinary care to ascertain the whereabouts of a missing employee who is employed on a moving train so that care may be given to such employee in the event that he is injured.” (Italics added.) The rule of law (as to duty of an employer who has notice of injury to his servant) from which outpost plaintiff asks us to take the one step further, has been announced in some jurisdictions (see Hunicke v.

Meramec Quarry Co. (1914), 262 Mo. 560 [172 S.W. 43, 54, Ann.Cas. 1915D 493, L.R.A. 19150 789]; Troutman’s Admix, v. Louisville & N. R. Co. (1918), 179 Ky. 145, 156 [200 S.W. 488, 494]; cf. Carey v. Davis (1921), 190 Iowa 720 [180 N.W. 889, 12 A.L.R. 904]), but cases in other jurisdictions, including California, have taken the opposite view (see Hackelberry v. Sherlock Land & C. Co. (1919), 39 Cal.App. 764, 767-768 [180 P. 37]; Voorhees v. New York C. & H. R.R. Co. (1909), 129 App.Div. 780 [114 N.Y.S. 242, 244] (affirmed in 198 N.Y. 558 [92 N.E. 1105]); Allen v.

Hixson (1900), 111 Ga. 460 [36 S.E. 810]; Denver & R.G. R.R. Co. v. Iles (1898), 25 Colo. 19 [53 P. 222, 225]; Matthews v. Carolina etc. Ry. Co. (1917), 175 N.C. 35 [94 S.E. 714]; Virginia Iron, Coal & Coke Co. v. Odle’s Admr. (1920), 128 Va. 280 [105 S.E. 107]; Stager v.

Troy Laundry Co. (1901), 38 Ore. 480 [63 P. 645, 648, 53 L.R.A. 459].) However, in the present case we do not pass on that rule, for even if we assume for purposes of this decision that we should, if the question were again presented, disapprove the Haekelberry case and adopt the contrary view, we are satisfied that we should not take the “further step” urged by plaintiff.

It is not, we think, the province of a state court, in an action brought under the Federal Employers’ Liability Act, to “expand” the doctrines of negligence to impose on the employer a duty unknown at common law and neither defined in the act nor recognized by federal court decision. It has been often pointed out that “the rights and obligations of the parties to an action arising under the Federal Employers’ Liability Act depend upon the terms of that Act and the federal decisional law. . . .

The question of negligence . . . must be determined not by the decisions of state tribunals ruling on questions of negligence arising under the laws of the states but by the decisions of the federal courts interpreting the Federal Employers’ Liability Act.” (Jacobs v. Reading Co. (3d C.C. 1942), 130 F.2d 612, 614.) “The rights which the Act creates are federal rights protected by federal rather than local rules of law. [Citations.] And those rights have been largely fashioned from the common law . . . except as Congress has written into the Act different standards.” (Bailey v. Central Vermont R.

Co. (1942), 319 U.S. 350, 353 [63 S.Ct. 1062, 87 L.Ed. 1444, 1447]; see, also, Haskins v. Southern Pac. Co. (1934), 3 Cal.App.2d 177, 183 [39 P.2d 895]; King v. Schumacher (1939), 32 Cal.App.2d 172, 177 [89 P.2d 466]; Southern R. Co. v. Gray (1915), 241 U.S. 333, 339 [36 S.Ct. 558, 60 L.Ed. 1030, 1034]; Sadowski v. Long Island R.

Co. (1944), 292 N.Y. 448 [55 N.E.2d 497, 499].) Thus, in an action brought under the act in which the intermediate appellate court of Ohio, on a question of defense of assumption of risk, had followed decisions of the Ohio Supreme Court rather than those of federal courts, the Supreme Court of the United States reversed the judgment, and observed that “in proceedings under [the Federal Employers’ Liability Act] . . . the rights and obligations of the parties depend upon it and applicable principles of common law as interpreted and applied in the federal courts. [Citations.] “The Court of Appeals acted upon the erroneous theory that it should follow the views of the Supreme Court of the State rather than those of this Court in respect of questions arising under the Liability Act.

That statute, as interpreted by this Court, is the supreme law to be applied by all courts, Federal and State. [Citation.] Where this view is not accepted, as in the present cause, it is within the power of this Court to determine and apply the proper remedy.” (Chesapeake & Ohio Railway Co. v. Kuhn (1931), 284 U.S. 44, 47 [52 S.Ct. 45, 76 L.Ed. 157, 160].) So far as we have discovered, the point here in issue has not yet been presented to a federal court, and the highest courts of the only two states in which it has arisen have decided adversely to the position of plaintiff in the present case. In Batton v.

Atlantic Coast Line R.

Co. (1936), 210 N.C. 756 [188 S.E. 383], an action brought under the Federal Employers ’ Liability Act, plaintiff alleged that while he was performing his duties as a flagman on defendant’s train at Weldon, North Carolina, he fell from a platform and suffered injuries which rendered him helpless; that he was not discovered until approximately five hours later; that defendant was negligent in not discovering plaintiff’s absence and locating and assisting him promptly; and that as a result of such alleged negligence plaintiff suffered from exposure to the cold and inclement weather and his injuries received from falling were greatly aggravated.

It was also alleged that it was plaintiff’s duty as flagman to give a signal to the engineer at each stop; that without such a signal the engineer started the train from Weldon in violation of instructions and custom; and that even after the train left Weldon, the other members of the train crew should have discovered plaintiff’s absence inasmuch as they were instructed, and it was their custom, to get his signals at each stop, and in the absence of such signals they should have known he was missing and have taken prompt steps to discover his whereabouts and condition.

On demurrer the trial court, as here, held the facts alleged insufficient to constitute a cause of action and rendered judgment accordingly. On appeal the Supreme Court of North Carolina, affirming the judgment, stated (pp. 387-388 of 188 S.E.): “In the absence of a statutory or contractual obligation, there is, as a general rule, no duty resting upon the employer to provide surgical or medical attendance or medicine for an employee who is injured or becomes ill while in his employment, except perhaps in a case in which the employee gives service without compensation.

" However, there is a tendency upon the part of the Courts to hold that where in the course of his employment a servant suffers serious injury or is suddenly stricken down in a manner indicating immediate and emergent need of aid to save him from death or serious harm, the master, if present, is bound to take such reasonable measure or make such reasonable effort as may be practicable to relieve him, even though the master is not chargeable with fault in bringing about the emergency, and in some jurisdictions it is said to be the duty of the employer to provide medical or surgical assistance in the case of an emergency where it is imperatively demanded to save life or prevent serious bodily injury. . . . “In the instant case, it is not alleged in the complaint that any of the employees of the defendant was present at the time the plaintiff fell from the platform at Weldon, or that the defendant had actual knowledge of the condition of the plaintiff as the result of his fall.

Nor are facts alleged in the complaint from which it can be held that the defendant had constructive knowledge of such condition. At most, the defendant knew when and after its train left Weldon that the plaintiff while engaged in the performance of his duties as a flagman on said train had disappeared from the platform and had not returned to the train. This knowledge did not impose upon the defendant or any of its employees the duty to make an investigation to discover the cause of plaintiff’s disappearance from the platform or failure to return to the train.

The plaintiff may have disappeared from the platform and failed to return to the train, while it was standing at the station at Weldon, voluntarily.

No facts are alleged in the complaint which imposed upon the defendant or its employees the duty to presume to the contrary. “Conceding that if the defendant had known that the plaintiff had fallen from the platform at Weldon, and had thereby suffered injuries which required immediate attention, medical or otherwise, the law would have imposed upon the defendant the duty to exercise reasonable diligence to provide such attention, we cannot hold that in the absence of such knowledge such duty was imposed upon the defendant.

We therefore find no error in the judgment dismissing the second cause of action alleged in the complaint. The judgment is affirmed.” (Italics added.) Haggard v. Lowden (1943), 156 Kan. 522 [134 P.2d 676], was also brought under the Federal Employers’ Liability Act, and an appeal was taken “from an order sustaining a demurrer” to plaintiff’s complaint.

There plaintiff administratrix alleged that her intestate Haggard was a conductor on a freight train; that while inspecting the train at Topeka, Kansas, as his duties required, he “was rendered unconscious by a blow on the head” from an unknown source; that the blow itself was insufficient to produce death; that the other members of the train crew, who had been at an eating house, upon returning to the train failed to see Haggard at his accustomed place on or along the train, failed to “exercise ordinary care of prudent persons in determining” his whereabouts, and, although Haggard was the only person authorized to order the movements of the train on its journey, continued the run without knowing where he was or what had happened to him and without attempting to locate him or determine the reason for his absence; that he was left lying unaided for approximately two hours, until discovered by police, and suffered loss of blood and from exposure and lack of prompt medical care which proximately caused his death but which could have been averted if defendants’ employees had promptly located and aided him or reported his absence; and that the acts and omissions of defendants and their employees were the proximate cause of his death.

The Supreme Court of Kansas, citing the Batton case, supra, affirmed the order appealed from.

In so doing, it stated the issues and the applicable principles of law as follows (p. 678 of 134 P. 2d) : “Where a conductor in interstate commerce is seriously injured from an unknown cause, while performing his duties at a stopping point, and under circumstances where he could have been found and his death prevented by the exercise of care by other members of the train crew, does their failure to so discover him constitute actionable negligence under the federal employers’ liability act; and, under such circumstances, where the other trainmen, in alleged violation of company rules, started the train without making any effort to locate the injured conductor, and without discovering his predicament or reporting his absence, thereby delaying securing of medical care until too late to prevent his death which would not have otherwise occurred, does the violation of the rules constitute actionable negligence under the above act? . . . (P. 679 [134 P.2d].) “ [I]t is conceded by the appellant, that the original injury sustained by Haggard was not occasioned by nor due to any negligence of the appellee.

The substance of appellant’s contention is that appellees owed a duty to render aid to an injured employee, regardless of the cause of his injury; that the violation by their employees of company rules was the legal cause of Haggard’s injuries not being sooner discovered so that aid could have been rendered, and that it was not necessary to liability that appellees have actual knowledge of Haggard’s injuries at the time they were received by him. “Without exposition, we think it may be said the appellees would be liable, both under the law and under the company’s rules, for failure to render aid, adequate under the circumstances, to an employee injured in the course of his employment, from the time they had actual knowledge of the injuries.

We need not pursue this rule further for under the allegations of the petition it cannot be said the appellees had such knowledge.

On the contrary, the allegations are that after Haggard received his injuries, through appellees’ negligence he was not found and was permitted to be unaided and without attention, his death resulting from his exposure and lack of medical care. . . . (P. 680 [134 P.2d].) “Appellant contends that in order for the company to be liable for negligence, it was not necessary the train crew have actual knowledge that Haggard had been injured, and that the appellees’ contention that duty to extend care and aid did not arise until their employees knew of the injuries is too narrow, and that if the train crew knew or should have known that Haggard was in a position of danger, there was negligence in failure to assist him.

In support of her contention, appellant does not cite any authority specifically in point, but she directs our attention largely to decisions dealing with injuries sustained in switching cases. . . .

None of the cases cited support the contention that under circumstances similar to those here involved, notice of the injury is not necessary. . . . (P. 681 [134 P.2d].) “We are of opinion that, under the circumstances of this case, the company was not negligent in not extending aid to its injured employee, when it was not aware of such injuries.” (Italics added.) Although, as above stated, we are aware of no federal 'decision upon the issue here involved, we note that in Cortes v.

Baltimore Insular Line (1932), 287 U.S. 367, 371, 377 [53 S.Ct. 173, 77 L.Ed. 368, 371-374], the court in discussing the liability of shipowners under the Merchant Marine Act of 1920 (41 Stats, at L. 1007, ch. 250, §33; 46 U.S.C., § 688) and the bearing of the Federal Employers’ Liability Act and decisions thereunder upon the liability of an employer whose negligence had caused personal injury to a seaman declared (speaking through Mr.

Justice Cardozo); “The question then is to what extent the ancient rule has been changed by modern statute ... [p. 372 U.S.; 371 L.Ed.] We are to determine whether death resulting from the negligent omission to furnish care or cure is death from personal injury within the meaning of the statute . . . [p. 373 U.S.] So, in the case at hand, the proper subject of inquiry is not the quality of the relation that gives birth to the duty, but the quality of the duty that is born of the relation. . . . [p. 376 U.S.; 372 L.Ed.] The failure to furnish cure is a personal injury actionable at the suit of the seaman during life, and at the suit of his personal representative now that he is dead. ...

We are warned, however, that in giving this content to the statute we are omitting to give heed to its reference to the act regulating the remedies of railroad employees, and are ignoring the standards of duty thus carried over and adopted . . . [p. 373 L.Ed.] True indeed it is that a common carrier by land is not subject to a duty, except in special circumstances, to give maintenance or cure to sick or disabled employees . . . [p. 377 U.S.; 374 L.Ed.] We do not read the act for the relief of seamen as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water.

The conditions at sea differ widely from those on land, and the diversity of conditions breeds diversity of duties. . . . There is doubt, and that substantial, whether the administrator of a railroad engineer who by misadventure has fallen from his locomotive while the train is on a bridge has a cause of action under the Federal Employers’ Liabilty Act because of the failure of the crew of the train to come to the rescue of their comrade. [Citation.] There is little doubt that rescue is a duty when a sailor falls into the sea, United States v. Knowles (D.C.) 4 Sawy. 517, F.Cas.

No. 15,540, and that a liability to respond in damages is cast upon the shipowners if he is abandoned to his fate. [Citations.] “The act for the protection of railroad employees does not define negligence. It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs. [Citation.] Congress did not mean that the standards of legal duty must be the same by land and sea.

Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman . . . ; and that the negligent omission to fulfill it shall have resulted in damage to his person.

When this concurrence of duty, of negligence and of personal injury is made out, the seaman’s remedy is to be the same as if a like duty had been imposed by law upon carriers by rail.” Here it does not appear to us that the pleaded facts from which, if the plaintiff is to recover, the breach of duty essential to the cause of action must be derived, disclose any pertinent duty either defined' by the act, recognized at common law, or declared by federal decision.

As to whether, as urged by plaintiff, “the time has come to expand . . . [the] doctrine [of employer’s liability] one step further and to impose a duty upon the employer to use ordinary care to ascertain the whereabouts of a missing employee who is employed on a moving [but sometimes standing] train so that care may be given to such employee in the event that he is injured,” we express no view.

We are of the view, however, that until and unless such duty is declared by the federal courts we should not, in Federal Employers’ Liability Act cases, undertake “expansion” of the common law doctrines of negligence through annexing, by our decision, to an old relation a new quality of duty and thus to impose liability where it is not clearly created by the act in question; the urged innovation in federal law, if it is to come at all, must derive from a federal source. The judgment is affirmed. Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.