Page images
PDF
EPUB

another. But even stepping from a train of cars in motion to a stationary platform or to the stationary ground, which is more dangerous, is not always culpably dangerous, and is not negligence per se. G., H. & S. A. R. R. Co. v. Smith, 59 Tex. 406; Doss v. Missouri, K. & T. R. R. Co., 59 Mo. 27; Filer v. New York C. R. R. Co., 49 N. Y. 47; Georgia R. & B. Co. v. McCurdy, 45 Ga. 288; Pennsylvania R. R. Co. v. Kilgore, 32 Pa. St. 292. The same may be said with reference to getting on a train while it is motion. Swigert v. Hannibal & St. John R. R. Co., 75 Mo. 475; s. c., 9 Am. & Eng. R. R. Cas. 322; Eppendorf v. Brooklyn City & N. R. R. Co. 69 N. Y. 195. The question of negligence in such cases is usually a question of fact for the jury, although sometimes and under some circumstances it may be a question of law for the court.

We do not think the court below erred in overruling the defendant's motion for judgment in its favor on the special findings of the jury; nor do we think that the court below erred in rendering judgment in favor of the plaintiff and against the defendant for the amount of the damages assessed by the jury, and for costs; and therefore the judgment of the court below will be affirmed.

SWEENEY

v.

MINNEAPOLIS AND ST. LOUIS R. R. Co.

(Advance Case, Minnesota. February 4, 1885.)

The plaintiff, a locomotive engineer in the service of defendant, was running a train over its road immediately after a very heavy storm, which he knew had caused numerous slides and washouts along the whole line of the road. He knew that no section-men had been along the line after the storm, and that he had to rely on his own watchfulness to guard against danger. He was going around a curve where he knew he was liable to meet dangerous places, but could not see or detect danger more than 130 feet ahead. He unnecessarily continued at a rate of speed so great that it was impossible for him to stop his train within the distance that he could see a washout, and consequently ran into it and received the injury complained of. Held, that the trial court was justified in dismissing the action, on the ground that it appeared that plaintiff was guilty of contributory negligence.

APPEAL from an order of the district court, Hennepin county.
Merrick & Merrick for appellant, Terrence W. Sweeney.
J. D. Springer for respondent, Minneapolis & St. Louis R. R. Co.

MITCHELL, J.-This was an action for damages for injuries caused by the alleged negligence of defendant. The answer denied negli

FACTS.

gence on part of defendant, and alleged contributory negligence on part of plaintiff. When plaintiff rested, the court, on motion of defendant, dismissed the action. We are inclined to think that there was evidence reasonably tending to prove that defendant was negligent in not properly protecting its roadbed at the place of accident by ditches and culverts for the passage of water. Hence the case should have gone to the jury, unless the evidence affirmatively showed negligence on part of the plaintiff so clearly and palpably as to come within the rule laid down in Abbett v. Chicago, M. & St. P. R. R. Co., 30 Minn. 482. This presents the only question in the case. The plaintiff was in the service of defendant as locomotive engineer on a mixed train running between Waterville and Red Wing on what was known as the "Cannon Valley Division." At the time of the accident, July 21, 1883, he was making his third round trip, and had been over the road once on a former occasion. Hence, although not so well acquainted with the road or the topography of the country as one longer in the service, he must be presumed to have had a general knowledge of both. On the day mentioned he started from Waterville in the morning, and arrived at Red Wing at 11:25 A. M., and left there on his return trip at 1:35 P. M. For the last few miles before he reached Red Wing it had been raining quite hard, and continued to rain for some time after he reached that place. Just before starting from Red Wing the conductor of the train read him "an order to the following effect: "Look out for slide, seven miles east of Cannon Falls, for 200 feet on the track, a foot deep. Look out for washouts between switches at Cannon Falls, and a slide east of Morristown." When he got about a mile out of Red Wing, the train was signalled by a section-man, who informed him that there was a washout a short distance ahead. Plaintiff and the conductor both got off and examined it. They concluded it was safe, and both of them got on the engine and passed over. Just beyond this was a stretch of bottom land for about two and one-half miles before coming to a curve. Across this bottom plaintiff went at the rate of 18 to 20 miles an hour. The curve beyond this bottom was about half a mile long, and ran around or near the base of a hill, and cutting through a point of it. As he approached the curve, plaintiff shut off steam and called for brakes, so as to go slow around the curve, and kept, as he states, a sharp lookout ahead. His reasons for doing so, according to his own statement, were that the conductor told him they had to go slow "because there were bad places."

Plaintiff also says that although they had not yet got near the place where the "order" warned them of washouts and slides, yet he thought they would meet with danger "sooner than that," and "I thought there might be trouble. I was going round a curve where I could not see, and I wanted to be cautious." He "slowed "

the train to seven or eight miles an hour, and was going at that rate when he first saw a washout about four car-lengths, or 125 or 130 feet, ahead. He called for brakes, and supposes they were applied, and "put the lever over on the back-motion," and gave her steam, but did not succeed in stopping the train before the engine struck the washout and was ditched, causing the injury complained of.

He also testifies that the train was still running at the rate of seven or eight miles an hour until the engine was within ten or twelve feet of the washout, and was going at the rate of four or five miles an hour when it struck it. There is no claim that plaintiff, on passing this curve, could not have slacked up to a rate of speed less than seven or eight miles if he had chosen to do so. The train had no steam or air brakes, and there is no pretence that the speed was not slackened as rapidly as could have been expected, with the appliances it had, after the washout was discovered; the only difficulty being that the washout was not discovered soon enough. Plaintiff does not state in what distance he could have stopped the train when going seven or eight miles an hour, but he says: "If everybody attends to business, going four miles an hour, with the appliances on that train, I could stop her in three car-lengths-about 100 feet." It follows that at seven or eight miles it would take a much greater distance. It also very clearly appears that plaintiff

did not suppose that any section-men had been over this part of the road after the storm, and hence he was not relying on signals, but was "feeling his way."

From this statement of facts, we think it almost conclusively appears that the plaintiff knew there had been a very heavy storm, which had caused slides and washouts at various places along the whole line of the road, and that he was liable to meet with them at almost any exposed point on the line; and that he had reason to believe, and did believe, that he was liable to meet with them in going around this very curve; and that he knew he had to depend upon his own care and watchfulness to avoid them; and that in going around this curve he could, even with vigilant watchfulness, see a washout a distance of only 125 or 130 feet ahead, but that he was still going at the rate of seven or eight miles an hour,―a rate so great that it would be impossible for him to stop his train within the distance at which he could discover danger. On the particular point involved, the case is not distinguishable from that of Mantel v. Chicago, M. & St. P. R. R. Co., 19 Am. & Eng. R. R. Cas. 362, present term.

Under the circumstances, ordinary care demanded that plaintiff should have slackened his train to a rate of speed that would have PLAINTIFF GUIL- enabled him to stop it within the distance that he could see danger ahead. The only excuse for not doing so is that he was required to make schedule time. This excuse is frivolous. No rules can compel engineers to run into im

TY OF CONTRIBU

TORY
GENCE.

NEGLI

minent danger, and hazard the safety of themselves and their trains. On the contrary, we apprehend that they are not only at liberty, but are required, when running over a road during or immediately after heavy storms, to run cautiously and without regard to "time-card time," and especially in places liable to slides or washouts. From these considerations we have arrived at the conclusion that the court was justified in taking the case from the jury. We have done so with some hesitation, for the reason that it is perhaps almost a "border" case, and we recognize the caution that should be exercised in this class of cases not to encroach upon the domain of the jury. It is sometimes an exceedingly close and difficult question to decide whether or not a case of this class should be submitted to the jury. In a case coming very near the line, we are disposed to give some weight to the judgment of the trial judge. This consideration has some additional weight in this case, from the fact that we have not the full benefit of the explanation of the topography of the country given in the court below by Spicer, the witness who made the map before us.

Order denying new trial affirmed.

Hoisting Coal-Injury by Crane-No Negligence. The plaintiff was employed in a coal-house of the defendant. While so employed hoisting coal for the purpose of filling a car, a co-employee so negligently managed a crane which they were using in the work that it struck the plaintiff's arm and broke it. The danger arising from the use of the crane does not appear to have been greater or less by reason of the fact that it was used in loading a railroad car, nor does it appear that the plaintiff while engaged in his duties was exposed to any danger from the operation of the road. The case comes within Malone v. Burlington, C. R. & N. R. R. Co., 61 Iowa, 326. Held, no liability. Luce v. Chicago, St. P., M. & O. R. R. Co.,* Iowa, September 26, 1885, and Foley v. Chicago, R. I. & P. R. R. Co., 21 N. W. Rep. 124.

Ordinary Care-Act of God.-A railway employee was killed in a train accident as to which there was evidence tending to show that it was due to a defective bridge, and also to an extraordinary downfall of water known as a cloud-burst, and attributed to God. The court instructed the jury thus: "But if, in addition to the act of God, so called, the intervention of man takes place, co-operating with it and commingling with it to any extent, however slight, and an injury then results, the injury is to be ascribed not to the act of God—which would constitute no defence in the case supposed-but to the act of man; and, therefore, if the negligence of a human being concurs with the act of God and causes an injury, the party thus negligent would be responsible therefor." Held, erroneous, in that it failed to distinguish between the degree of defendant's negligence, defendant being liable only in case of want of ordinary care. Rodgers v. Central Pacific R. R. Co., California, October 29, 1885.

*

22 A. & E. R. Cas.-20

MISSOURI PACIFIC R. R. Co.

v.

MACKEY.

(Advance Case, Kansas. March 7, 1885.)

Chapter 93 of the Laws of 1874, which provides that railroad companies shall be liable for all damages to any of its employees caused by the negligence of co-employees, does not deny to railroad companies the equal protection of the law guaranteed by the fourteenth amendment to the constitution of the United States, and is not in conflict therewith.

The inquiry of what are the general duties of a fireman on a switch-engine, in a certain track-yard, at a stated time, does not relate to a matter which is the subject of expert testimony, and upon which an opinion may be given, but is a question of fact which may be testified to by any witness having personal knowledge thereof.

While witnesses ought not to be permitted to express an opinion that a fireman upon an engine performed a certain service in the manner required of him in the proper discharge of his duty, yet it is competent for any witness having personal knowledge of the facts to state what the duty is, or what services were generally performed by firemen in that yard.

In an action against a railroad company by one of its employees to recover for personal injury occasioned by the negligence of co-employees, the plaintiff is held only to the exercise of ordinary care to entitle him to recover, such care as men of ordinary judgment, intelligence, and prudence would exercise under like circumstances; and an instruction that any negligence, or slight negligence, on the part of the plaintiff, would prevent a recovery would imply and hold the plaintiff to a higher degree of care than is by the law required of him, and was properly refused.

Evidence considered and held to be sufficient to show that plaintiff's injury was caused by the negligence of his co-employees, and also to sustain the finding of the jury that plaintiff was in the exercise of ordinary care at the time he received his injury.

An employee of a railroad company thirty-nine years of age, in good health, who was serving in the capacity of fireman on a locomotive, had his leg and foot crushed, making amputation necessary, and causing great and protracted suffering, impairing his general health, and after a lapse of more than two years the injury occasions him considerable nervous irritation and pain which will probably increase and continue during his lifetime, is by the jury awarded damages in the amount of $12,000. Held, that, under the circumstances, the verdict is not so excessive as to lead to a conclusion that the jury were actuated by passion, prejudice, or improper influences, nor to justify this court in setting the verdict aside.

ERROR from Atchison county.

Everest & Waggener for plaintiff in error.

Thomas P. Fenlon and John C. Tomlinson for defendant in

error.

JOHNSTON, J.-This action was brought by Patrick Mackey

« PreviousContinue »