Robel v. Chicago, Milwaukee & St. Paul Railway Co.
| Citation | 27 N.W. 305,35 Minn. 84 |
| Parties | Frank Robel, Administrator, v. Chicago, Milwaukee & St. Paul Railway Company |
| Decision Date | 12 March 1886 |
| Court | Supreme Court of Minnesota (US) |
Appeal by plaintiff from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial.
Case is that the nonsuit was improperly granted, and the order refusing a new trial is reversed.
Gore & Fletcher, for appellant.
W. H Norris, for respondent.
Action under the statute to recover damages for alleged negligence resulting in the death of the plaintiff's intestate. At the trial, and upon the evidence presented on the part of the plaintiff, the court directed a nonsuit, upon the ground that the deceased was chargeable with contributory negligence. The following facts were shown by the evidence: The accident occurred in the day-time, upon a side track of the railroad at Hastings. This track, running east and west, at the place of the injury runs under or through a trestle-work structure extending from the river south, across this track, to a grain elevator standing a considerable distance from it. This trestle-work supported a rail or tram-way, which was used for transporting grain, by means of cars, from the elevator to the railroad track, to be there transferred to the railroad cars, and also, perhaps, to transport grain to the river. The trestle-work was of about the height of the top of a box freight car. To enable cars to pass through without obstruction, a section of the tram-way over the track was hinged on one side, so that it might be swung into an upright position. When in that position, it would be about 18 feet high. The horizontal distance between the trestle and a box car passing through it is 14 1/2 inches. Fifteen feet east of the trestle, the track runs under the approach to a bridge which crosses the river. The perpendicular space between the top of a box car and this bridge structure is four and a half feet. The track descends as it approaches the bridge from a point some distance west of this locality, and comes to an end east of the bridge. The deceased had been engaged in the defendant's employment at this place three or four days at the time of the accident, as a brakeman, and as one of a yard crew at Hastings, under direction of one Bostwick, the yard-master; and, so far as appears, had not previously been acquainted with the locality. During each of the two or three days before the accident, he had been down over this side track, and, as may be assumed, through and beyond this trestle, engaged as one of the yard crew in connection with the moving of cars. At the time of the accident, two box cars were to be sent from the west, eastward beyond the bridge, where they were to be left. The cars, detached from the locomotive, were running down towards the bridge at a speed of from four to six miles an hour, the deceased being on the top as brakeman. Before reaching the trestle, he had set the brake on the forward car, and was standing on the car, with his back in the direction in which the cars were moving, looking to the westward, where Bostwick was in sight, standing upon the locomotive. Bostwick motioned to him for the purpose of cautioning him to stoop down so as to avoid striking the bridge. The evidence tends to show that the deceased turned his head as though looking towards the bridge. He then attempted to descend to the ground by means of the ladder on the side of the car, and, as he was doing so, he was struck by the trestle, was swept off, run over, and killed.
There was presented a case proper for the determination of the jury, as to whether the defendant was chargeable with negligence in permitting the trestle to stand so near to its track. Clark v. St. Paul & S. C. R. Co., 28 Minn. 128, (9 N.W. 581;) Kearns v. Chicago, M. & St. P. Ry. Co., 66 Iowa 599, (24 N.W. 231;) Dorsey v. Phillips, etc., Const. Co., 42 Wis. 583; Chicago & Iowa R. Co. v. Russell, 91 Ill. 298.
The point most relied upon in support of the nonsuit is that, although there was negligence in suffering the trestle to be so near to the track, yet the deceased must be deemed to have assumed the risk, and to have waived all right to recover for injuries caused thereby. The conditions necessary to sustain this proposition are that Robel knew, or was chargeable with want of ordinary prudence if he did not know, not only of the existence of the trestle, but that it stood so near to the passing cars as to occasion the danger which he encountered, -- Russell v. Minn. & St. L. Ry. Co., 32 Minn. 230, (20 N.W. 147;) Cook v. St. Paul, M. & M. Ry. Co., 34 Minn. 45, (24 N.W. 311;) Dorsey v. Phillips, etc., Const. Co., 42 Wis. 583; Mayes v. Chicago, R. I. & P. Ry. Co., 63 Iowa 562, (14 N.W. 340, and 19 N.W. 680;) Chicago & Iowa R. Co. v. Russell, 91 Ill. 298, -- and to justify a nonsuit upon this ground it must so clearly appear that such was the case that the jury would not have been warranted in considering that the evidence failed to establish such conclusions.
In our judgment, the case does not come up to these requirements. It is not shown how many times in the course of the two or three days preceding the accident Robel was called into the vicinity of or past the trestle. At most, it was not many times. How he may have been engaged on these occasions, how far his attention may have been necessarily directed to other things, and what opportunities he had for observing the proximity of the trestle to the cars, is not shown. It may be assumed that he must have seen so conspicuous an object as the trestle. But that might be, and yet he not have known the danger, or have had such reason to apprehend danger that he is to be conclusively presumed negligent in not having informed himself of it. Until the servant should have some reason to apprehend the existence of this danger not ordinarily incident to his employment, his conduct might be in some degree influenced by the assumption that the employer had regard to its duty, and would not negligently expose the servant to extraordinary peril. The same degree of watchfulness would not be demanded of him to inform himself concerning possible extraordinary dangers as would be required in respect to such perils as were ordinarily incident to such service. See cases above cited. In these first few days of Robel's employment, it is reasonable to consider that many things would naturally demand his attention concerning his duties and the locality in which he was placed, and that, under ordinary...
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