Burho v. Minneapolis & St. L. Ry. Co.

• Decision Date: 09 May 1913
• Citation: 141 N.W. 300,121 Minn. 326
• Parties: BURHO v. MINNEAPOLIS & ST. L. RY. CO.
• Court: Minnesota Supreme Court

121 Minn. 326

141 N.W. 300

BURHO

v.MINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

May 9, 1913.

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

Action by O. S. Burho against the Minneapolis & St. Louis Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

In an action against a railroad engaged in interstate commerce to recover for injuries to plaintiff, its employé, while attempting to open a knuckle of an automatic coupler on a car then used in interstate commerce, it is held that under the evidence it was for the jury, and not the court, to determine whether or not the coupler was such as is required by the federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]).

A coupler which fails to work when an honest and reasonable effort is made to operate it under circumstances and in the manner it is designed to be operated does not comply with the requirements of the act referred to.

The trial court held that the sole ground of recovery rested upon the alleged failure of defendant to comply with the act mentioned. It therefore follows that the defendant was not entitled to avail itself of plaintiff's contributory negligence for any purpose, under the proviso of section 3 of the federal Employer's Liability Act approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 66 [U. S. Comp. St. Supp. 1911, p. 1323]).

The evidence made the question one of fact for the jury whether or not plaintiff was engaged in making a coupling when he was injured, so that it may be said that the defective coupler was the proximate cause of the injury.

Alleged errors in the instructions of the court examined and held not well founded. An unenforced rule of the defendant does not protect it against the consequences of its failure to comply with the mandatory requirements of the act referred to.

No prejudicial misconduct available to defendant is found in the fact that two jurors saw other couplers, which were permitted to remain in an anteroom to the courtroom during the trial; the court and the attorneys for defendant knowing of their presence and possibility of being observed by jurors.

The damages, though large, held not so excessive that this court ought to interfere. W. H. Bremner and F. M. Miner, both of Minneapolis, for appellant.

W. R. Duxbury, of St. Paul (Theodore Hollister, of Duluth, of counsel), for respondent.

HOLT, J.

Action to recover damages for personal injuries received through the negligence of the defendant. The verdict was for plaintiff, and defendant appeals from an order denying its motion for judgment in its favor, or, in case of a denial thereof, for a new trial.

Plaintiff alleged that on April 14, 1911, he as brakeman, was in the employ of the defendant, a railway company engaged in interstate commerce. On that day he was injured on the defendant's tracks at Waseca, Minn., while at work upon one of its interstate commerce freight trains under these alleged circumstances, in brief: As plaintiff was so working, it became his duty to couple a ‘dropped in’ car to the said freight train on defendant's ‘passing’ track at Waseca, and in so doing he rode on the ladder of the car to regulate the speed, if necessary, and to set the coupling so that the car would couple onto the train on contact with it. Under the law the defendant was required to furnish the car with a safe coupling apparatus that could be operated by a lever from the position on the ladder in which plaintiff was in. It is alleged that the coupling on the car in question was out of order and could not be operated by the lever; hence it was necessary for plaintiff to resort to the customary way then in use on defendant's line to make the coupling, namely, to descend from the ladder to the ground, walk in front of the moving car, and open the knuckle with his hands, so that by the impact with the standing train the coupling would be made. When in the act of so opening the knuckle, plaintiff avers that he stumbled and fell, due to defendant's negligence in depositing a heap of cinders containing large clinkers on the track, and that, as he fell, the wheels of the moving car caught him, inflicting injuries which resulted in the loss of the left leg eight inches below the knee, and all that part of the right foot in front of the heel. The alleged negligence, in short, is failure to have such couplers as the law requires, and failure to maintain the track in a reasonably safe condition. The answer admitted the character of the defendant's business, and the plaintiff's employment upon this train, then engaged in interstate traffic, also that, while so working, he received some injuries, but denied that they were occasioned by any negligence on its part, and set up contributory negligence and assumption of risk in defense.

The evidence, in addition to these admissions, tended to show these facts: At Waseca another railroad crosses the defendant's, and connecting tracks are laid, so that cars may be transferred from one line to the other. When the freight train in question arrived at that place on this trip, it pulled in on the defendant's passing track, the locomotive was uncoupled, and the train crew proceeded to do some switching with it, and also got from the other railway line a car to be placed in the train which plaintiff was assisting in transporting. This car was to be coupled to the north end of the train left on the passing track. In that operation the locomotive proceeded with this car to a position on the main line some distance north of the switch for the passing track; then the locomotive started south, the car, to be coupled to the standing train, being at the north end or rear thereof. When the locomotive had obtained sufficient speed to make what is termed a ‘flying switch,’ the car in question was uncoupled, and as soon as the locomotive passed by the switch for the passing track that switch was thrown, so that, as the uncoupled car came along, propelled by the momentum given while it was attached to the locomotive, it went in on the passing track. The object was to give the car such momentum that it would be carried to the standing train and couple thereto by impact. The operation is also termed ‘dropping’ a car in. Plaintiff's duty was to take the car when it passed the switch, protect the intervening street crossings, control, by the brake, the force of the impact, and see that the coupling was made. As the car proceeded south, plaintiff caught on at the southwest corner, by placing one foot in the stirrup projecting down from the sill at the side of the car near that corner, the other foot on the journal of the trucks, and holding onto the grabiron on the side of the car. As he was thus riding, he claims that he found the coupling knuckle closed, and, since the car would not couple to the standing train in that condition, it was his duty to open it. He made several unsuccessful attempts to open it with the coupling lever, which he could manipulate from his position. As there was no danger that the impact would be too forceful, plaintiff jumped off the car, which was moving slowly, and tried to jerk the lever while walking beside the car, but without success. He then went in front thereof to open the knuckle with his hands. He maintains that, although a rule of the defendant forbids going between moving cars in making a coupling, the custom and practice is for brakemen to go in front of or between cars to make the coupling when for any reason the automatic couplers fail to work. When he was so walking in front of the moving car and attempting to open the coupler knuckle, he fell over some obstructions on the track, he claims, and received his serious injuries. There is also other testimony to the effect that the coupler failed to respond to the lever and had to be opened by hand. The defendant's evidence was to the effect that the coupler was of approved make and at the time in good working order.

The court held that no negligence was shown as to the condition of the track, but submitted to the jury whether defendant failed to maintain such a coupler as the act of Congress requires; if it so failed, was the plaintiff engaged in his duty of making a coupling, so that the proximate cause of his injuries can be said to be a defective coupler? The jury was also instructed that, if the failure of the coupler to work was...