Sherman v. Chi., M. & St. P. Ry. Co.

Decision Date16 November 1885
Citation25 N.W. 593,34 Minn. 259
PartiesSHERMAN, ADM'X, ETC., v CHICAGO, M. & ST. P. RY. CO.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the district court, Freeborn county.

Lovely & Morgan, for respondent, Sarah M. Sherman.

Cameron, Losey & Bunn, for appellant, Chicago, M. & St. P. Ry. Co,

GILFILLAN, C.J.

The evidence in this case is such as to sustain a finding that defendant was negligent in not having protected the frog, or the space between the main rail and guard rail, where the deceased was killed. Such places unprotected are places of very great danger, especially to men employed in coupling or uncoupling cars, and it is the duty of a railroad company to guard its employes against the danger, if there be reasonably practicable means for doing so known to it, or which, in the use of proper diligence, intelligence, and care, may be known to it; and the evidence for the plaintiff clearly indicates devices which the jury might find to have been practicable, and reasonably adequate and inexpensive, and known, or which ought to have been known, to defendant, and which, as to this particular frog, it had omitted. And the evidence is not such as necessarily to bring the case within the decision in Hughes v. Winona & St. P. R. Co., 27 Minn. 137;S. C. 6 N. W. Rep. 553. It tended to show such a case, but whether it made out a state of facts to make the rule there laid down controlling, was, as the evidence stood, for the jury.

There was evidence to show that, some time before deceased was killed, the defendant adopted in the yard at Wells, where he was killed, as a means of making the frogs safe, wooden blocks, inserted and spiked down in the angle made by the rails; that this was an effectual, simple, and inexpensive device to prevent the foot becoming caught fast in the frog, wherein the danger consisted. That some of the blocks in that yard either became worn out or were removed, and others not inserted in their stead, but that these instances were so numerous as to become the rule,-as show that the mode of doing the business at that yard was to leave the frogs unprotected to such extent that deceased must be presumed to have known it, and consequently to have taken on himself the risks incident to that mode of doing the business,-was not so clearly shown that the question could be taken from the jury.

Defendant requested this instruction to the jury: “That if Sherman knew that some of the rails were not blocked and...

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