Boss v. N. Pac. R. Co.

• Decision Date: 31 July 1891
• Citation: 49 N.W. 655,2 N.D. 128
• Parties: Boss v. Northern Pac. R. Co.
• Court: North Dakota Supreme Court

2 N.D. 128

49 N.W. 655

Boss

v.Northern Pac. R. Co.¹

Supreme Court of North Dakota.

July 31, 1891.

Syllabus by the Court.

1. It is incumbent upon a railroad employe whose duty requires him to ride upon one of the company's trains to ride in such places as the railroad company has provided for that purpose; and, if he is injured while riding in a more dangerous position, the law will presume that his negligence contributed to such injury. But this presumption may be overcome by evidence that such employe occupied such dangerous position through no fault or negligence of his own, and not of his own free will.

2. An employe, upon entering the service of a railroad company, has the right to assume that the railroad and its appurtenances are so constructed as to render him safe in the performance of his duties, and that he will not needlessly be exposed to extraordinary risks of which he has no notice, or of which he is not chargeable with notice.

3. Such employe does not assume the risk arising from the erection and maintenance of a switch-stand and target of such height, and in such position and condition, that the target will sometimes come in contact with the sides of the cars of passing trains; particularly when such employe of the company knows that the rules of the company prohibit the erection of any such switch-stand within less than six feet of the track.

4. In an action for damages upon the ground of a neglect of duty on the part of the defendant, it must appear that the neglect of duty was not only the cause, but the proximate cause, of the injury; but, to enable a defendant to shield himself behind an intervening cause, such intervening cause must be one that severs the connection of cause and effect between the negligent act and the injury.

5. Where the negligent act of one responsible party concurs with the negligent act of another responsible party in producing an indivisible injury to a blameless third party, such third party has his right of action against either of the negligent parties.

6. While the statute requires the charge of the trial judge to the jury to be exclusively in writing, yet where a party sits by and hears the trial judge give the jury parol instructions, and fails to object thereto at the time and upon that ground, he is conclusively presumed to have waived the error.

Appeal from district court, Cass county; William B. McConnell, Judge.

Action by Herman Boss against the Northern Pacific Railroad Company for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.John C. Bullitt, Jr., and Ball & Smith, for appellant. Taylor Crum and S. G. Roberts, for respondent.

Bartholomew, J.

On the 15th day of December, 1885, plaintiff was in the employ of defendant as a section hand, and was engaged in unloading wood in defendant's yards at Fargo. On that day, and while riding on one of defendant's trains from the round-house to the depot,-a distance of about one mile,-plaintiff was struck by a switch signal, and knocked from the train, and injured. This action was brought to recover damages for such injury. The train on which plaintiff was riding was known as the “Jamestown Accommodation.” It consisted of an engine, tender, freight caboose car, and an ordinary coach. This caboose-car was equipped, as it appears such cars usually are on defendant's road, with a platform and steps at each end, with a door in each end, and side doors in the front part. The front end of this car was being used as a baggage-car, and the rear end as a smoking-car. The end door in front was habitually locked, but there was no notice or anything to indicate that entrance could not be made at that end. Ordinarily, these cars, when in proper use on freight trains, are not locked at either end. This train regularly made a brief stop at the round-house, and passage on the train was free to all parties from the round-house to the depot. The section foreman of the gang in which plaintiff worked had directed the men under him who did not bring their dinners with them to ride on this train to the depot in going to dinner, and plaintiff and others of his fellow-workmen had been in the habit of so riding for a number of days. They had, however, been directed by the conductor and brakemen of the train to ride in the caboose-car, and not in the coach. On the day of the accident, plaintiff and the others were working about 500 or 600 feet from and north of the point where the train would stop. When the train whistled the men started in a run to reach the point where it would stop. Plaintiff seems to have been in front. He crossed the track to the south side in front of the engine, and passed back until he reached the front steps of the caboose-car, where he climbed upon the platform. Access to the train was from the ground on either side. About the same time others of the workmen were getting on the front platform of the caboose from the north side. Plaintiff tried the door in the front end of the car, and found it locked. It does not appear that he made any effort to leave the front platform and get aboard at the rear of the car. The train started almost immediately. One of the sectionmenwho went to the rear of the caboose testifies that the train was moving when he got on. There are two parallel tracks from the round-house to the depot. This train came in on the south track, but before reaching the depot it was thrown through a switch on the north track. When the train started there were so many of the section hands on the platform that plaintiff was crowded down until he sat upon the second step, with his feet resting on the lower step. As the train was thrown onto the switch he arose to his feet, he says, to enable him to hold on better. As the train passed from the switch onto the north track a sudden lurch of the car threw plaintiff to the south until his head passed the line of the outside of the car, and was struck by the target on the switch-stand at that point. When struck, plaintiff was not looking to the east in the direction the train was running, but was looking to the south-west. The train was running at more than double the speed allowed by the rules of the defendant company inside the Fargo yard limits. The switch-stand by which plaintiff was injured was about seven feet high, and was located four feet from the track. The target at the top extended nine inches in each direction. When the stand was erect this target would be within eight inches of a passing train. The switch-stand was bent, throwing the top still nearer the train and it had been known to come in contact with passing cars. The rule of the defendant-with which plaintiff was familiar-required all switch-stands of this height to be placed not less than six feet distant from the track. Where a switch-stand was required to be erected within less than six feet of the track, a low pattern was used. This switch-stand had been in use for two years prior to plaintiff's injury. Defendant's road-master had notified the proper division superintendent, long prior to the injury to plaintiff, that this switch-stand was too high and dangerous. Immediately after the injury to plaintiff it was removed, and the low pattern substituted.

There was a general verdict for plaintiff. The facts as recited are either uncontradicted, or supported by such evidence that the jury might fairly find them to exist. There was a motion to take the case from the jury at the close of plaintiff's testimony, and repeated when the testimony was all in; but as the same points are preserved and presented under the exceptions to the instructions, and to the refusal of the court to give certain instructions asked, the motion need not be specially noticed. The negligence of defendant would seem to be established too clearly to be seriously questioned. The learned counsel for defendant contend, however, that the facts do not establish any negligence of which this plaintiff can take advantage; that the defendant had the unrestricted right to erect structures on its right of way where and when it pleased, subject only to liability for such injuries as might be caused by such structures to employes while engaged in their proper sphere of duty, and to passengers while riding in their proper place in the cars. As a general proposition the contention is correct. Whether at the time of the injury plaintiff be regarded as a passenger or an employe, we think he was lawfully upon the train; that he was not a trespasser. But as the case has been submitted to us on the theory that his rights were only those of an employe, and the duty and liability of the defendant to him were only such as it owed to its employes, and as that view is the more favorable to the defendant, we will accept it, in passing upon the case. The plaintiff was, then, lawfully on the train, in obedience to the orders of his foreman. He had no duty to perform on the train except to ride in such places on the caboose-car as defendant had provided for that purpose. If he failed to do so; if he occupied a more dangerous position,-and the steps to a platform would be a more dangerous position,-that would raise a presumption of such contributory negligence on his part as would defeat a recovery, admitting the negligence of defendant. To overcome that presumption of contributory negligence, and entitle himself to a recovery, it would be necessary for the plaintiff to establish the fact that he occupied such position through no fault or negligence of his own, and not from choice. On this point the learned trial court fully and correctly charged the jury. If plaintiff succeeded in establishing the facts as above indicated, he would then be in a position to take advantage of defendant's negligence. But it is insisted that plaintiff failed to show that he was not in this dangerous position from choice, because he failed to show that he made any effort to get on board at the rear platform after h...