Ashe v. Minneapolis, St. P. & S. S. M. Ry. Co., 20321.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: HALLAM
• Citation: 138 Minn. 176,164 N.W. 803
• Decision Date: 26 October 1917
• Docket Number: No. 20321.,20321.
• Parties: ASHE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

138 Minn. 176
164 N.W. 803

ASHE
v.
MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

No. 20321.

Supreme Court of Minnesota.

Oct. 26, 1917.

Appeal from District Court, Ramsey County; F. N. Dickson, Judge.

Action by Thomas J. Ashe against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Directed verdict for defendant, and plaintiff appeals. Order affirmed.

Syllabus by the Court

Plaintiff, a switchman in a yard with two tracks, called respectively the east-bound and west-bound tracks, was guarding his train approaching on the west-bound track. He stood between the east and west bound tracks and within the sweep of an engine on the east-bound track. There was no necessity of his standing so near that track. He knew that a train was due on that track in a minute or two, yet he stood with his back to it until it struck him. Held, he was guilty of contributory negligence.

Defendant's trainmen on the east-bound train saw plaintiff standing between the tracks, but thought he was in the clear. Plaintiff, too, thought he was. There is no ground for a claim of wanton negligence on the part of defendant's trainmen.

[164 N.W. 803]

Douglas, Kennedy & Kennedy, of St. Paul, for appellant.

M. D. Munn, of St. Paul, for respondent.

HALLAM, J.

On December 26, 1915, plaintiff was employed by the Northern Pacific Railway Company as switchman in one of its yards in St. Paul. Defendant operated its trains through this same yard. In the part of the yard where plaintiff was employed were two main tracks, called the east -bound and west-bound main tracks. A spur, running easterly, branched from the west-bound main track. Plaintiff's train was on the spur and was approaching the west-bound main. It was plaintiff's duty to keep a lookout for trains coming from the Union Depot on this same west-bound track. If a train appeared, then he must stop it or stop his train. If none appeared, he must set the switch for his train to pass from the spur to the west-bound main, and ‘line the switch back’ after his train had passed it. On this occasion the west-bound main was clear and plaintiff had set the switch for his train to pass from the spur to the main track. The train was passing over the switch in that movement. Plaintiff was standing between the west-bound and the east-bound main tracks. He stood about two feet from the east-bound track, just near enough to be within the sweep of the pilot beam of an engine on that track. Had he stood farther away, a distance estimated by different witnesses at from two to six inches, he would have been on safe ground. While he was standing in this position looking east, a train of defendant came on the east-bound track and plaintiff was struck by the pilot beam of the engine and injured. He sued for damages. The trial court directed a verdict for defendant. Plaintiff appeals.

There is some evidence of negligence on behalf of defendant in operating the train at excessive speed and wthout giving proper or customary warning of its approach.

[1] 1. It seems to us, however, that plaintiff's own testimony shows that he was guilty of contributory negligence as a matter of law. Plaintiff's testimony is that he took this position at...