Boss v. N. Pac. R. Co.

• Decision Date: 02 October 1888
• Citation: 5 Dak. 308,40 N.W. 590
• Parties: Boss v. Northern Pac. R. Co.
• Court: South Dakota Supreme Court

40 N.W. 590

5 Dak. 308

Boss

v.Northern Pac. R. Co.

Supreme Court of the Territory of Dakota.

October 2, 1888.

Appeal from district court, Cass county; William B. McConnell, Justice.Taylor Crum, for appellant. Ball, Wallin & Smith, for respondent.

THOMAS, J.

This action was brought by the plaintiff, Herman Boss, against the defendant, the Northern Pacific Railroad Company, in the district court of Cass county, to recover damages for personal injuries received by him through the alleged negligence of defendant's servants. The testimony, as disclosed by the record, tends to show the following facts: On the 15th day of December, 1885, the plaintiff was severely injured by being struck by the switch-signal which stood at a point in defendant's yard at Fargo, between the round-house and depot. On the day of the accident plaintiff was at work for defendant as a section hand, and was employed, with others, in handling wood near the shop or round-house. Shortly after noon, the plaintiff, with his co-laborers, boarded one of defendant's trains, to go some distance down the railway track to dinner. This was the usual mode of going to dinner by the employes, adopted at the instance and request of the foreman under whom they worked, in order to get back to their work in proper time. The plaintiff, together with his co-employes and other persons, got upon the front platform of the caboose on this train, and, owing to the great number of persons standing on this platform, was forced to stand on the bottom step thereof, and was in this position when the train moved out, and was struck in the back of the head while the train was in motion by the lever or signal of a switch that stood in the yard, and near the track on which the train was moving. The stroke knocked him senseless and from the train. This switch-signal was constructed within four feet of the railway track, and, when in an upright position, was that distance from said track, but when in a leaning or slanting position was so near as to come in contact with the sides of the cars as they passed along the railroad track; and on the day of the accident this lever or signal scraped the sides of the cars of the train on which plaintiff was riding. There is some testimony tending to show that this kind of a switch-signal should have been placed at least six feet from the railroad track in order to be safe, and that such was the distance that they were generally placed by all railroad...