L. L. Price v. Union Pacific Railroad

(dissenting).

I am unable to go along with the holding of my associates that the Board made no disposition of the merits of appellant’s complaint.

The Union, in its submission to the Board, admitted that appellant left Nip-ton and returned to Las Vegas; and it was not disputed that in doing so he deliberately disobeyed an order of the dispatcher. The Union sought to justify this admitted infraction of an operating order by reference to Section (b) of Article 32 of the Agreement, quoted by my associates in their footnote 5. In disposing of the case the Board, among other things, stated: “If the carrier is to have efficient operations on its railroad, employees must be relied on to obey operating instructions and orders.”

It appears to me plain that the Board was of opinion, and in substance held, that the asserted violation by the Company of Article 32, even if true, would *668 not serve to justify an employee’s violation of direct operating instructions and his abandonment of his post. Such a ruling would appear to promote safety in-railroad operations, which must always take into account considerations of that nature. 1 With its intimate knowledge of the field, the Board is…

L. L. Price brought this action against Union Pacific Railroad Company, to recover damages in the amount of $118,-517, alleging that he had been wrongfully dismissed as a trainman.

After the filing of an answer and the obtaining of certain admissions, defendant moved for a summary judgment. The motion was made on the ground that a determination made by the National Railroad Adjustment Board (Board) that the dismissal was valid precluded this independent court action. Agreeing with this view, the trial court granted summary judgment for defendant. Plaintiff appeals.

*665 The single question presented on this appeal is whether, in view of the action of the Board in denying Price’s claim for restoration with all rights unimpaired, and for back pay, the trial court was without jurisdiction to entertain this independent court action for damages.

Price had been employed by the railroad as a brakeman on its South Central District, operating out of Las Vegas, Nevada. On July 12, 1949, he was instructed to deadhead on a 9:15 p. m. train to Nipton, California, a distance of 56.7 miles, for swing service at Nipton. He reached Nipton at 10:25 p. m., and telephoned the Las Vegas train…

255 F.2d 663 L. L. PRICE, Appellant, v. UNION PACIFIC RAILROAD, Appellee. No. 15649. United States Court of Appeals Ninth Circuit. May 20, 1958, Rehearing Denied July 7, 1958. Samuel S. Lionel, Las Vegas, Nev., for appellant. Cory, Denton & Smith, Calvin M. Cory, Las Vegas, Nev., Bennett, Renwich & Davis, E. E. Bennett, Edward C. Renwick, Malcolm Davis, Los Angeles, Cal., for appellee. Before HEALY, POPE, and HAMLEY, Circuit Judges. HAMLEY, Circuit Judge. 1 L. L. Price brought this action against Union Pacific Railroad Company, to recover damages in the amount of $118,517, alleging that he had been wrongfully dismissed as a trainman. 2 After the filing of an answer and the obtaining of certain admissions, defendant moved for a summary judgment. The motion was made on the ground that a determination made by the National Railroad Adjustment Board (Board) that the dismissal was valid precluded this independent court action. Agreeing with this view, the trial court granted summary judgment for defendant. Plaintiff appeals. 3 The single question presented on this appeal is whether, in view of the action of the Board in denying Price's claim for restoration with all rights…