Bennett v. Northern Pacific Railroad Company
| Decision Date | 17 December 1892 |
| Citation | 54 N.W. 314,3 N.D. 91 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County; Rose, J.
Action for personal injuries by Geo. A. Bennett against the Northern Pacific Railroad Company. Defendant had judgment, and plaintiff appeals.
Reversed.
Judgment reversed, and a new trial ordered.
S. L Glaspell, for appellant.
Ball & Watson, for respondent.
This is the second time this case has been before us. On the former appeal the opinion is reported in 2 N.D. 112; 49 N.W 408. On the second trial the court directed the jury to find for the defendant. Judgment was entered on the verdict so directed. From that judgment this appeal is taken. Should the case have been submitted to the jury? It is necessary to review the evidence, as the facts seem to be somewhat different from those which appeared from the record on the former appeal. The plaintiff was injured while assisting in coupling an engine to a flat car, known as a "Union Tank Line Car.' The car was standing on a switch. Plaintiff was directed by Dennis Shields, the foreman of the switching crew of which plaintiff was a member, to go with him to couple onto this car, and to transfer it to another track. Plaintiff turned the switch, and stepped upon the end board of the engine where Shields was standing. The engine then started eastward to back down to this car, which was only a few rods distant,--about 60 or 70 feet. The switch was a curved one. How great was the curve is not disclosed by evidence on this record. Plaintiff appears to have offered to prove that the curve was slight, but this offer was objected to, and the objection sustained by the court. Shields stood on the end board on the outside of the curve, while plaintiff stood on the end board on the inside of the curve. According to plaintiff's testimony he was looking for a pin with which to make the coupling as the engine approached the car. Finding none lying on the drawhead of the car, he turned to the tool box in the rear end of the tank of the engine to look for one there. Discovering none there he next cast his eyes upon the ground to find one, and was still unsuccessful. Finally he espied one on the platform of the car near the end. The engine, he says, was at that time about twenty feet from the car, and moving slowly, about 2 1/2 miles an hour. He leaned over and grasped the pin, and was just in the act of setting it when he was caught between the end of the car and the end of the engine, and one of his pelvic bones crushed. The injury appears to be permanent and quite serious.
There is a marked difference between the evidence on this and on the former trial so far as the length of the drawbar of this car and the circumstances immediately surrounding the accident are concerned. On the former appeal we held that plaintiff was guilty of contributory negligence as a matter of law, because the evidence disclosed the fact that this drawbar projected less than five inches from the end of the car before the slack was taken up. We held that, as the plaintiff slowly approached the car, he could not have failed to have noticed that the drawbar was extremely short had he used proper care; but it now appears from some of the evidence that this drawbar projected 10 or 12 inches beyond the end of the car. We do not think that it can be said, under such evidence, that as a matter of law, the plaintiff was negligent in not apprehending peril; nor is it evident that plaintiff would have been injured at all had the play of this drawbar been only normal; i. e. from one to four inches. The engine was moving so slowly that its momentum when it struck the car must have been very slight. Shields, the foreman, says that the engine barely touched the car when they came together. The amount of slack taken up under these circumstances would be but little if everything was in proper condition. We think that the plaintiff had a right to assume that everything was all right, under the circumstances. It is true that, under the rule referred to in the opinion on the former appeal, and which was introduced in evidence on the second trial, the...
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