Gegere v. Chicago & N. W. Ry. Co., 26789.

• Citation: 220 N.W. 429,175 Minn. 96
• Decision Date: 29 June 1928
• Docket Number: No. 26789.,26789.
• Parties: GEGERE v. CHICAGO & N. W. RY. CO.
• Court: Supreme Court of Minnesota (US)

220 N.W. 429

175 Minn. 96

GEGERE v. CHICAGO & N. W. RY. CO.

No. 26789.

Supreme Court of Minnesota.

June 29, 1928.

Appeal from District Court, Goodhue County; Albert Johnson, Judge.

Action by Frank Gegere against the Chicago & Northwestern Railway Company. Verdict for plaintiff. From an order denying its motion for judgment non obstante or a new trial, defendant appeals. Order denying new trial reversed.

Thomas Mohn and Horace W. Mohn, both of Red Wing, and Richard L. Kennedy, W. T. Faricy and P. J. McGough, all of St. Paul, for appellant.

Tautges, Wilder & McDonald, of Minneapolis, for respondent.

HOLT, J.

Defendant appeals from an order denying its motion for judgment non obstante or a new trial, a verdict having been returned for plaintiff.

Defendant is a common carrier and part of its railroad system extends through the cities of Marinette and Green Bay, Wis. Green Bay Junction is a stopping place less than a mile beyond the main station in Green Bay coming from Marinette. In the morning of November 30, 1925, plaintiff bought a ticket at Green Bay going from there to Marinette. Towards evening he procured a ticket at Marinette for the return passage and boarded the defendant's train, which arrived at Green Bay Station at 8:10 p. m. Defendant, pursuant to the laws of Wisconsin, had duly posted and published its schedule of rates, showing the fare from Marinette to Green Bay to be $1.77, from Marinette to Green Bay Junction $1.81, and from Green Bay to Green Bay Junction 10 cents. If the fare is paid on the train, 10 cents in addition to the scheduled fare is charged. Plaintiff concluded to ride to Green Bay Junction, and as the conductor, upon the train approaching Green Bay, was taking up the slip of paper, given plaintiff on the receipt of his ticket or fare, showing his destination, he told the conductor that he was going to get off at Green Bay Junction. The response of the conductor was that he did not care where plaintiff got off. Green Bay was a division point. The train stopped there some 20 minutes, and a new train crew, conductor included, took charge. Plaintiff did not offer to pay additional fare when he announced his intention to remain, nor did that conductor demand any. As the train stopped at Green Bay Junction the new conductor had not reached the coach—the smoker—in which plaintiff rode to collect fare, but came out from the rear door of the coach in front of the smoker as plaintiff reached the front vestibule of latter and was about to descend the steps, when he slipped and fell, as he claims, because of ice and snow which had been allowed to accumulate on the steps. For the injuries so received plaintiff was awarded damages by the verdict.

Error is assigned upon the refusal to set aside the summons, and order judgment for defendant upon the same grounds advanced by it in Erving v. Chicago & Northwestern Ry. Co., 171 Minn. 87, 214 N. W. 12. The particular contention being that it is an undue burden upon interstate commerce to require defendant, a foreign common carrier, to bring its lawyers and witnesses into this state to try the case, the accident having occurred not on defendant's railroad lines here, but in Wisconsin where plaintiff also resides. We adhere to the decision in the case cited until the Supreme Court of the United States, the final authority, decides otherwise. See, also, Kobbe v. Chicago & Northwestern Ry. Co., 173 Minn. 79, 216 N. W. 543. Hoffman v. Missouri ex rel. Foraker, 274 U. S. 21, 47 S. Ct. 485, 71 L. Ed. 905, appears to sustain our position.

The motion for judgment non obstante was denied. This is assigned as error. At first blush two of the cases cited by defendant upon this point appear to sustain it, the facts being very much like those here present, namely Akin v. Chicago & Northwestern Ry. Co. (C. C. A.) 21 F.(2d) 1000, and Meyer v. Michigan Cent. Ry. Co., 180 Mich. 516, 147 N. W. 485. It was there held that the mere presence of ice and snow on the platform or steps of passenger coaches, without proof as to the length of time it had remained, or that those in charge of the train had knowledge of its existence and opportunity to remove the same, could not support a recovery. However, in the Akin Case the court made much of the fact that a light coat of snow had drifted in covering the ice so as not to make it observable to the trainmen and that a wire, which contributed to the accident, may have been there for such a short time that the train crew would have had no occasion to notice it. In the Meyer Case a heavy snowfall and storm followed the train on which Meyer was riding and upon which he had his accident, and the court said:

"We think it is a matter of common knowledge that when passenger trains are operated in midwinter and during snowstorms and while the snow is blowing and drifting, more or less snow will collect on the platforms and steps. To hold that the platforms and steps are to be freed from snow and ice at each station, or before a passenger is allowed to pass over them, would be to impose an unreasonable rule, and one which would make it extremely difficult to operate trains in the winter season."

The same thought was expressed in Palmer v. Pennsylvania Ry. Co., 111 N. Y. 488, 18 N. E. 859, 2 L. R. A. 252. However, in Herbert v. St. Paul City Ry. Co., 85 Minn. 341, 88 N. W. 996, the mere fact that there was testimony of an accumulation of ice and snow on the rear platform and steps of a street car without a showing of how long it had remained there justified the submission of the carrier's negligence to the jury. Since a common carrier is held to the highest degree of care in the protection of passengers while upon the journey and while entering and leaving the conveyance, it would seem reasonable to hold that, where the proof shows ice or snow upon the platform or steps of a railroad coach, it requires the carrier to explain or rebut the inference of negligence which arises from the presence of a substance which may imperil the safety of the passengers. This accords with Heck v. Northern Pac. Ry. Co., 59 Mont. 106, 196 P. 521. The accumulation itself and climatic conditions may be such as to indicate a negligent delay in its removal. Gilman v. Boston, etc., Ry. Co., 168 Mass. 454, 47 N. E. 193; Foster v. Old Colony St. Ry. Co., 182 Mass. 378, 65 N. E. 795. The surrounding circumstances may also be such as to disprove negligence. Riley v. Rhode Island Co., 29 R. I. 143, 69 A. 338, 15 L. R. A. (N. S.) 523, 17 Ann. Cas. 50; Fearn v. West Jersey Ferry Co., 143 Pa. 122, 22 A. 708, 13 L. R. A. 366; and the two cases first cited of Akin and Meyer. The question then recurs whether the character of the accumulation and the testimony regarding it made a jury question. There was evidence that snow flurries had occurred between Marinette and Green Bay during the forenoon; that the...