Pettit v. Great Northern Ry. Co.
| Citation | 59 N.W. 1082,58 Minn. 120 |
| Decision Date | 10 July 1894 |
| Docket Number | 8758 |
| Parties | Jonas A. Pettit v. Great Northern Ry. Co |
| Court | Supreme Court of Minnesota (US) |
Argued June 28, 1894
Appeal by defendant, the Great Northern Railway Company, from a judgment of the District Court of Wright County, Robert D Russell, J., entered February 5, 1894, against it for $ 4,794.64.
At Smith Lake on October 2, 1893, Frank Pettit, fifteen years old, son of plaintiff Jonas A. Pettit, was standing on a flat car of the defendant under the circumstances stated in the opinion. When the front part of the train backed down against the rear part to couple on to it the shock caused Frank to fall off between the cars. His right arm was crushed and afterwards amputated. This action was brought by the father for the benefit of his son, under 1878 G. S. ch. 66, § 34, against the Railway Company to recover damages to the son caused by its alleged negligence in not exercising reasonable care to avert the injury after seeing the boy in danger. The father also brought an action to recover for the loss of his son's services and for care and expenses occasioned to him by the accident. The plaintiff had a verdict in the first action for $ 4,700 and in the latter for $ 300. Judgment having been entered on the larger verdict defendant appeals.
Judgment reversed.
W. E Dodge, for appellant.
F. E Latham, J. T. Alley, and J. C. Tarbox, for respondent.
Mitchell, J. Canty, J., dissenting. Buck, J., absent, sick, took no part.
These actions were brought to recover damages for personal injuries to plaintiff's son, caused by the alleged negligence of the defendant, -- one action for the benefit of the son, and the other for the benefit of the plaintiff himself for loss of services, etc. The only question is whether the verdicts in favor of the plaintiff were justified by the evidence.
Stripped of all immaterial matter, the short facts are that the boy was at the station of Smith Lake, when a freight train arrived, consisting of some thirty or more cars, -- all box cars, except a few flat cars at the rear. Ascertaining that some of the flat cars were to be switched in and left on a side track, the boy got on to the second flat car from the rear of the train "for the purpose of having a ride." The train started towards the switch, and had gone only a short distance, when it broke in two within ten or twelve cars from the engine. The head brakeman, who was up near the break, signaled the engineer to stop, which he did, bringing the first part of the train to a standstill from four to six car lengths from rear part of the train. This brakeman, having been provided with a new link, gave the engineer the signal to back, which was obeyed, and when the two parts of the train came together the brakeman made the coupling readily in the usual manner. While the evidence on the point is not very satisfactory, yet we think it was sufficient to justify the jury in finding that the engineer backed at an unusual rate of speed. It was the shock resulting from the two parts of the train coming together which caused the boy to be thrown out over the end of the flat car on which he was standing, thereby receiving the injuries complained of. It is not, and cannot be, questioned but that the boy was a trespasser, or, in view of the fact that the conductor did not order him off the car, at most a bare licensee. Hence the defendant owed the boy no contract duty, and to render it liable it must be made to appear that, after discovering that he was in a position of danger, the servants failed to exercise reasonable care to avert the danger; and that is the rule which plaintiff invokes, and upon which he relies.
It is not pretended, but, on the contrary, was disclaimed on the argument, that the flat car was a place of danger had the engine been backed at the usual and proper rate of speed. Indeed, no such claim could be made without convicting both the boy and his father of contributory negligence, for the boy was fifteen years old, and had considerable familiarity with the movement of trains and the process of switching cars upon the side track. Although he does not admit it in so many words, yet it is perfectly evident from his testimony that he knew the train had broken in two, and that steps were being taken to recouple it. And after the train broke, and up to the time he was injured, he says he remained standing near the end of the flat car, talking, and having some fun with the two rear brakemen, who were sitting on the ground, a few feet from him; and that he "had his attention on these fellows, making fun and laughing at him and he was not looking anywhere else, or paying attention to anything else." The plaintiff, who stood near by, knew every fact which the conductor then knew, and yet gave his son no warning. But the contention is that the danger arose from backing the engine at an unusual rate of speed without warning the boy of his danger; and therein it is claimed was the negligence of the defendant. But to charge the defendant with negligence on this ground it is necessary, under the rule already referred to, that it should appear either that those who were controlling the movements of the engine, and hence responsible for the rate of speed, knew that the boy was on the car, or that some other employe of the defendant, knowing both that the engine was backing at an unusual rate of speed and that the boy was on the car, failed to exercise reasonable care to avert the danger, either by causing the speed of the engine to be slackened, or by warning the boy. In other words, in order to charge actionable negligence against any particular employe, it is necessary to fasten upon him knowledge both of the source of danger -- to wit, the unusual speed of the engine -- and of the fact that the boy was on the car. And right here is where we think the evidence of the plaintiff utterly fails. While undoubtedly the conductor had general control of the train, yet it clearly appears that, in accordance with the usual custom, the engineer and the head brakeman, who...
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