Erickson v. St. Paul & Duluth Railroad Company
| Decision Date | 18 October 1889 |
| Citation | 43 N.W. 332,41 Minn. 500 |
| Parties | Nils Erickson v. St. Paul & Duluth Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for St Louis county, Holland, J., presiding, (acting for the judge of the 11th district,) refusing a new trial after verdict of $ 6,000 for plaintiff.
Order denying a new trial must be affirmed.
James Smith, Jr., and W. A. Barr, for appellant.
John Jenswold, Jr., for respondent.
This was an action to recover damages for personal injuries caused by the alleged negligence of those operating a train on defendant's railway. As the settled case does not purport to contain all the evidence, many of defendant's assignments of error cannot be considered. The only question really open for consideration is whether, upon the facts disclosed by the record, there was positive error in the instructions given to the jury at the request of the plaintiff, referred to in the sixth assignment of error. It appears from the evidence contained in the record that plaintiff was in the employment of a contractor who had the job of grading for defendant a side track from Duluth westward alongside of and parallel with the old or main track. The work of plaintiff and his fellow-laborers was shovelling dirt in loading and unloading dump-cars. The manner of doing the work was to load these cars at one point and then haul them by team on a temporary or work track laid on the new grade, and unload them where a fill was to be made. This work track was about two feet wide, and the distance between it and the main track, from outside to outside, was, by actual measurement, four feet seven inches. While this work had been going on the main track was in constant use by trains, which were passing almost hourly during the day. While it does not appear that the work of these graders required them to actually go upon the main track, yet we think it conclusively appears from the facts in evidence that from time to time, as occasion called for it their work required them to be in such dangerous proximity to it as to be liable to be struck by passing trains. The engineer of the train which injured plaintiff says that the men shovelled on both sides of the dump-cars standing on the work track. It also appears in evidence that when trains came along the men were in the habit of running in between the dump-cars, sometimes one way and sometimes another, and this is not contradicted. It also appears that standard cars, such as were used on defendant's road, project beyond the rail two feet and a half. It does not appear how far the dump-cars projected beyond the rail, but when it is considered that the total space between the tracks was only four feet seven inches, and that the cars used on the railway occupied two and one-half feet of this, leaving the remaining space at most only about two feet, it is apparent that men engaged in shovelling on that side, and intent on their work, would, unless warned to get out of the way, be in imminent danger from passing trains. This is emphasized by the conceded fact that on all previous occasions it had been the uniform custom of those operating trains to give signals of warning to the men by blowing a whistle or ringing a bell on approaching the place where they were at work. No one was appointed to keep a lookout for approaching trains, but, as two of the workmen express it, "every one had to look out for himself." This, of course, is to be construed in connection with the undisputed fact, already referred to that it had been the uniform custom of the trainmen to give a signal of warning on approaching a gang of these graders. The employes running the trains knew that these men were, and had for some time been engaged in this work alongside the road, and of course the men were equally well aware that trains were frequently passing. The country was level, and the view unobstructed, so that, had they looked, the workmen could see a train approaching from the east at a distance of a mile and a half, and the engineer and fireman on the train had equal facilities for seeing the workmen. On the day of the accident the men had loaded a train of dump-cars, and the teamster had started to haul it, when, at a point about 1,500 feet west of "West Duluth station," a car near the middle of the train became derailed, the wheels getting six or seven inches off the rails on the side toward the main track, and the body of the car tipping or careening over still further in the same direction. The foreman ordered the men to get around the car, and lift it back on to the track. Some of them went to the ends and some to the sides of the car. Plaintiff was one of those who went to the side next the main track, and took hold about the middle of the car to help to lift it, his back being turned towards the main track. While the men were thus engaged, one of their number discovered a train approaching from the east, and then distant only the length of seven or eight rails. He gave the alarm, whereupon there was immediately a hurried rush of the men on that side to get out of danger. They all succeeded except plaintiff, who, being...
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