Whitehead v. Wisconsin Central Railway Company

• Decision Date: 13 December 1907
• Docket Number: 15,492 - (144)
• Citation: 114 N.W. 254,103 Minn. 13
• Parties: EARL W. WHITEHEAD v. WISCONSIN CENTRAL RAILWAY COMPANY
• Court: Minnesota Supreme Court

114 N.W. 254

103 Minn. 13

EARL W. WHITEHEAD v. WISCONSIN CENTRAL RAILWAY COMPANY

Nos. 15,492 - (144)

Supreme Court of Minnesota

December 13, 1907

January 20, 1908

Action in the district court for Ramsey county to recover $50,000 damages for personal injuries. The case was tried before Olin B. Lewis, J., and a jury which rendered a verdict in favor of plaintiff in the sum of $35,000. From an order denying its motion for judgment notwithstanding the verdict and denying its motion for a new trial if plaintiff consented to a reduction of the verdict to $30,000, defendant appealed. Affirmed.

SYLLABUS

Master and Servant -- Defective Telltale -- Verdict.

While operating as a brakeman respondent was knocked off the top of a freight car by a low overhead bridge, and claims appellant was guilty of negligence in maintaining a defective type of telltale and in failing to exercise a proper supervision to keep the same in order. Held:

1. That the case was submitted to the jury upon proper instructions and that the jury were justified by the evidence in finding appellant guilty of negligence as charged and that respondent was not guilty of contributory negligence, and did not, in this instance, assume the risk of his occupation, though he was familiar with the locality and voluntarily changed the customary method of inspecting the train.

2. The opinion of a witness as to the safety and reliability of telltales in use by appellant, as compared with those of other railway lines, was irrelevant and incompetent, for the reason that the jury were entitled to make their own deductions from the evidence as bearing upon the question whether appellant was negligent in maintaining the particular type of telltale involved in this action.

3. The verdict of $35,000 was not so excessive as to indicate that the jury were actuated by passion and prejudice, and the sum of $30,000, as reduced by the trial court, does not, under all the circumstances, conclusively appear to be more than just compensation for the injuries sustained.

Thomas H. Gill, Walter D. Corrigan, and Walter L. Chapin, for appellant.

Humphrey Barton and John H. Kay, for respondent.

OPINION

LEWIS, J.

Respondent was the head brakeman upon a freight train operating through Chippewa Falls, Wisconsin, and this action is based upon the claim that he was struck by a low overhead bridge and knocked off the top of the car on which he was standing, and that appellant was negligent in failing to maintain a proper telltale and in failing to keep the same in proper condition. Respondent recovered a verdict, and this appeal was taken from an order denying appellant's motion for judgment notwithstanding the verdict or for a new trial.

1. While the evidence was somewhat conflicting upon many points, the question of appellant's negligence with respect to the telltale in question was sufficient to go to the jury. Although respondent pleaded the Wisconsin statute with respect to telltales, and alleged failure on the part of appellant to comply therewith, the case was tried upon the theory that the statute had no application. This telltale had been constructed prior to the time the law went into effect, and it was not made to appear at the trial that the railroad commissioner had ever, as provided by the act, taken steps to enforce the same, or whether at the time of the accident appellant claimed to be maintaining the telltale in question under the provisions of that act.

Appellant's negligence was based upon the ground that, without regard to the requirements of the statute, it had constructed a telltale at a point about one hundred sixty feet east of the bridge, and that it was constructed in such careless and negligent manner that upon this occasion it failed to give the warning which it was intended to give. The cross-beam, from which the ropes were suspended, was covered by a platform about thirty inches wide. Witnesses testified that they had examined the telltale about two or three hours prior to the time of the accident, and that five or six of the strings had lodged on the platform, leaving a space in the center of about thirty inches. It was claimed by respondent that, if appellant had used a rod or beam simply, the ropes would have been far less likely to lodge when thrown up by the action of the wind or the exhaust of passing engines; that by constructing a platform only thirty inches wide appellant had enhanced, instead of reduced, the chances of the ropes adjusting themselves after becoming disarranged in the manner stated; and that the only reasonably safe way, if any platform at all was constructed, was to make it wide enough so that the ropes or strings could not catch. As bearing upon the question of the negligence of appellant in this particular, evidence was received of the custom of other railroads, and the whole subject of telltales was gone into by both parties. The type of telltale above described was in general use by appellant, but not by other railroads. The statute did not prescribe that form of construction, and the mere fact that appellant had generally adopted it was not conclusive evidence that it was a safe appliance. Whether ordinary care had been exercised in erecting such an appliance was a question of fact, and the evidence was sufficient to take the question to the jury.

Appellant was also charged with negligence in failing to exercise reasonable supervision over the telltale as constructed. Upon this question it was shown that in the morning of the day preceding the accident employees in charge of that line of work inspected the telltale, and at that time it was found in proper order. On the other hand, it was shown that numerous engines passed under the bridge every day, and that it was not unusual for the ropes on that kind of telltales to become disarranged by the puffing of the engines, and it was claimed that the inspection, as conducted by appellant, was entirely inadequate under the circumstances. If the ropes were more likely to become lodged by reason of the platform, then more vigilance was required to keep them in order, and whether proper care was exercised was a question of fact.

2. Does it conclusively appear, as a matter of law, that respondent was guilty of contributory negligence, or that he assumed the risks of his occupation? It was shown that he had been in appellant's employ for about two years; that he had passed under the bridge in question at least one hundred times; that he was thoroughly familiar with the location; that in the usual course of his duties as brakeman, when the train approached Chippewa river, he was required to get off the engine, inspect the bottom of the cars constituting the train, as the same slowly passed him, and then get on the caboose when it reached him, and go forward to his post of duty toward the front of the train.

The rules of the company required the trainment to inspect the cars at that point before crossing the river bridge, and respondent always performed that duty. On this occasion, however, when the train...