Hall v. Chicago, Burlington & Northern Railroad Company
| Decision Date | 01 July 1891 |
| Citation | 49 N.W. 239,46 Minn. 439 |
| Parties | Fred A. Hall v. Chicago, Burlington & Northern Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial on plaintiff consenting that the verdict (of $ 40,133.33) be reduced to $ 25,000.
Order affirmed.
Young & Lightner, for appellant.
Harvey E. Hall, John A. Lovely, and Davis, Kellogg & Severance, for respondent.
This was an action to recover damages for personal injuries sustained by plaintiff while in defendant's service as a locomotive engineer of a passenger train. The injuries were the result of a collision between plaintiff's train and some freight-cars on defendant's main track, between Dayton's Bluff and Oakland station; and a somewhat full statement of the facts is necessary to a proper understanding of the case. The plaintiff was employed in running the regular suburban passenger train between the Union Depot, in St. Paul, and Pullman avenue, a distance of 10.18 miles, the first station south of the Union Depot being Dayton's Bluff, a distance of 1.75 miles, and the next Oakland, the further distance of 1.88 miles. These trains were and always had been run on schedule time, the one on which plaintiff was injured leaving, according to the time-table, Union Depot at 9:30, Dayton's Bluff at 9:38 and Oakland at 9:43 P. M. Immediately south of Dayton's Bluff station there is a short curve, but beyond that, south the track is straight almost down to Oakland. The main track is the westerly or riverward one, and east of it are several parallel side tracks. About 2,160 feet south of the curve referred to there is a cross-over from the adjacent side track to the main track, and 2,150 feet south of the cross-over is the switch-frog, at which the collision occurred. There is one switch-stand at the cross-over and another 86 feet south of the frog, governing the switch to which the frog belongs. These switch-stands are surmounted by the usual lights, which show a white light up and down the track when set for the main track, and a red light when the switch is open. A car standing partly on the main track and partly on the side track would hide the light from an engineer coming down from Dayton's Bluff. The defendant's yard, as defined by its rules, extends 3,000 feet south from the south switch, which would carry it down almost to Oakland, although the land between Dayton's Bluff and Oakland is really out in the country, and uninhabited, the defendant's road being there built through a marsh. In railroad parlance, "station" or "station limits" includes "yard."
The defendant had promulgated certain rules for the government of its employes, the most material provisions of which are as follows:
Trains were classified on the time-tables with regard to their priority of right to the track. Trains of the first class (to which plaintiff's train belonged) were superior to those of the second and all succeeding classes. All trains not classified on the time-tables were known as "extra," or "wild" trains, and were required to keep entirely out of the way of all regular trains, of whatever class, clearing the time of such regular trains at least 10 minutes if passenger, and 5 minutes if freight, trains. Trains of a superior class had the absolute right of the track over all trains of an inferior class. Working trains in all cases to clear the time of passenger trains at least 10 minutes.
"Should any freight or irregular train, at any time, be compelled to occupy the main track at a station or elsewhere within the time of any passenger train, the conductor of such train must immediately send out a flagman to warn the approaching train."
Another rule provided that, when the track was obstructed by accident or from any other cause, the conductor should immediately protect his train, either by going back himself, or sending a competent flagman, with danger signals, (a red lantern and torpedoes by night,) to a point not less than 20 telegraph poles (2,000 feet) distant from the rear end of his train, and until he reached a point where his danger signals could be seen not less than a quarter of a mile by the engineer of an approaching train, where he should place one torpedo on the rail, then move back one telegraph pole, and there remain until the expected train arrived, or until he is recalled by the whistle of his own engine.
On the night in question, which was rather dark, the plaintiff's train, consisting of an engine, baggage, smoking, and two passenger coaches, left the Union Depot on schedule time, (9:30 P. M.,) and also left Dayton's Bluff station on time, (9:38,) running at the usual rate of speed, 18 or 20 miles per hour. Plaintiff sat looking down the track out of the left-hand or easterly side of the cab, and after passing the curve referred to, just south of Dayton's Bluff station, saw both switch-stands giving a white light, showing that the switches were set for the main track. There was no danger signal, nor anything to indicate that there was any obstruction on the track. In this situation of things, and after he had passed the cross-over, and, as he says, when he was within 600 or 700 feet from the frog where the accident occurred, his attention was attracted by the noise of the injector on the fireman's side of the engine, which had "broke" its work, which caused him to turn round and watch the fireman setting the injector at work again. The principal question of fact contested on the trial was as to the length of time the plaintiff ceased his lookout, and watched the fireman fixing the injector. This, and the propriety or necessity of his ceasing his lookout at all, are really the most important questions in this case. The plaintiff's testimony is that he was thus occupied not over 10 or 12 seconds, during which his train ran not to exceed 300 feet. While the fireman estimates the time it took him to fix the injector at about "a minute," yet his testimony corroborates that of plaintiff, that the whole thing occupied a very short space of time. The defendant's counsel argues that the evidence shows that the plaintiff must have ceased his lookout at least a minute, during which his train would have run 1,500 or 1,600 feet. This conclusion is arrived at by an estimate of the length of time which it would have taken for the occurrence of the successive events which he assumes took place after plaintiff ceased his lookout and before he resumed it. Not only is this mode of reasoning largely conjectural, but in this case we think the counsel is not entirely accurate in his assumption as to what did occur intervening these points of time. The estimates of witnesses as to the lapse of time are very unreliable, especially where, as in this case, the time is, at most, very brief, and different events follow each other in rapid succession. Some persons will estimate at a few seconds what others will estimate at as many minutes. The general tendency, under such circumstances, is to overestimate the lapse of time. In our judgment, all the circumstances indicate that defendant's calculation is an overestimate; and, while that of plaintiff may be somewhat of an underestimate, yet the evidence was such as to justify the jury in concluding that it was approximately correct. At any rate, it is evident, that the space of time referred to was exceedingly brief, as it appears that the collision occurred only about two minutes after plaintiff left Dayton's Bluff. When plaintiff resumed his lookout he instantly saw that the switch light was obscured, (indicating that there were cars between him and it.) He also saw, right in front of his engine, and in the act of getting out of its way, a man swinging a lantern. He immediately did everything in his power to stop his train, but, being then within 250 or 300 feet of the frog, the distance was so short that a collision was inevitable.
The cause of the collision was as follows: A switching crew had left a string of freight-cars on the main track, just north of the switch, from about 8 o'clock in the evening. Within four or five minutes of the time of plaintiff's train, the person in charge of the switching crew sent an engine, with two cars attached, out on the main track to bring in these freight-cars. This engine first ran south on the main track far enough to clear the switch, which was then set for the main track. It was evidently after this was done that the plaintiff, while on the lookout before the injector broke, saw the white lights. The engineer of the switch-engine then backed up north on the main track, and coupled on the freight-cars referred to, and then went south far enough to let the rear of these cars clear the switch. During all this time the switch was set for the main track and, of course, would continue to show a...
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