Clarke v. Chicago & NW Ry. Co.

• Decision Date: 17 December 1945
• Docket Number: Civil Action No. 1322.
• Parties: CLARKE v. CHICAGO & N. W. RY. CO.
• Court: U.S. District Court — District of Minnesota

63 F. Supp. 579

CLARKE v. CHICAGO & N. W. RY. CO.

Civil Action No. 1322.

District Court, D. Minnesota, Fourth Division.

December 17, 1945.

Carl L. Yaeger, of Davis, Michel, Yaeger & McGinley, all of Minneapolis, Minn., for plaintiff.

Alfred E. Rietz. of St. Paul, Minn., for defendant.

DONOVAN, District Judge.

Plaintiff commenced an action to recover damages attributed to personal injuries arising out of an accident during the course of plaintiff's employment by defendant as a switch foreman, on July 21, 1944, at Milwaukee, Wisconsin.

At the time of the accident, plaintiff was forty years of age and was an experienced railroad employee, having been employed by defendant in various capacities since he was eighteen years of age, and continuously in switching service by defendant in its Third Ward Yards in Milwaukee, for a period of some six years preceding the accident.

Early in the morning of July 21, 1944, plaintiff was working as a switch foreman, switching cars of a train that had just arrived from Illinois. It was dark enough to require the use of an electric lantern by plaintiff. Just before plaintiff met with the accident he was standing on the top of a box car in the middle of a train made up of approximately sixty cars. The switching crew consisted of himself and two fellow switchmen. One of the latter was working next to the locomotive and the other at the end of the train most remote from the locomotive.

The only evidence in the case as to the cause of the accident is the testimony of the plaintiff. There were no other witnesses to the accident. Plaintiff testified that he stood in the middle of the train in the manner described for the purpose of receiving and passing signals which would be relayed to the engine men on the locomotive by the switchman working next thereto. The train was moving slowly at about five miles per hour when plaintiff decided that he could signal his fellow switchmen better from a box car standing upon an adjoining and parallel track. He stepped or jumped across to the top of said lastnamed box car and after taking two or three steps plaintiff testified that he stubbed his toe against a screw, nail or some similar object projecting from the surface of the running board of said car, which caused plaintiff to trip and fall a distance of about fourteen feet to the ground below, where he was found by his fellow employees. An ambulance was called and he was taken to a hospital in Milwaukee, attended by defendant's doctors and hospitalized for about one month.

Diagnosis, aided by X-ray, established the presence of a fracture of plaintiff's left heel bone and compression fractures of the first and fourth lumbar vertebrae. The heel was operated upon and plaintiff's left foot and part of his leg was placed in a cast. The cast was removed at the end of eight weeks. Plaintiff described pain, suffering and inconvenience experienced by him up to the time of the trial, and represents that he is incapable of carrying on his livelihood in switching service or performing the required labor in connection therewith.

The medical testimony described a 15% permanent disability of plaintiff's left foot, including the ankle joint movement. Further, that while plaintiff's back had improved at the time of the trial, its condition was such as to prevent assumption of "heavy active labor".

This action was brought pursuant to the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. and the Safety Appliance Act, 45 U.S.C.A. § 11. Plaintiff predicates his cause of action upon the claimed violation of said Section 11 of the Safety Appliance Act, which required defendant at all times herein to equip all cars used by it in interstate commerce with "secure running boards." Defendant claims it did provide its cars with secure running boards. Plaintiff contends that the projection described above was the proximate cause of his accident.

Plaintiff had a verdict of $11,000.

Defendant's motions may be summarized as follows:

(1) Defendant moves for judgment because

(a) plaintiff failed to prove actionable negligence;

(b) defendant's negligence, if any, was not the proximate cause of the accident; or,

(2) for a new trial because

(a) of errors occurring during the trial;

(b) of misconduct on the part of plaintiff's counsel;

(c) the verdict was excessive.

Defendant argues vigorously that the accident did not happen in the manner described by plaintiff. Defendant is without direct evidence to contradict plaintiff's description of the happening of the accident, and hence theorizes that plaintiff slipped or was thrown from the top of the box car by a cause for which defendant was not responsible. The verdict of the jury makes it clear that plaintiff's story was accepted as true. Plaintiff testified that when confronted with the situation here existing it was proper custom and practice to do what he did in stepping across from the box car he was riding on to a box car standing still upon an adjoining track. Defendant produced testimony to the contrary. The custom, however, was not the test, but rather what a reasonable and prudent person would do under like or similar circumstances. Terminal Railroad Association of St. Louis v. Schorb, 8 Cir., 151 F.2d 361. The industrial accident is not denied, and for the Court to say that plaintiff's testimony to the effect that something protruded above the surface of what should have been a secure running board was untrue would constitute...