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

CourtSupreme Court of Minnesota (US)
Writing for the CourtHOLT
Citation141 N.W. 300,121 Minn. 326
Decision Date09 May 1913
PartiesBURHO v. MINNEAPOLIS & ST. L. RY. CO.

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.


[141 N.W. 301]

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...

To continue reading

Request your trial
37 practice notes
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 164 S.W. 310; Holtz v. Railroad Co., 176 Minn. 575, 224 N.W. 241; Burho v. Railroad Co., 121 Minn. 326, 141 N.W. 300; Texas & P. Ry. Co. v. Sprole, 202 S.W. 985. (c) The inference, from the failure of the coupler to operate, that the coupler......
  • Western & Atl. R. R v. Gentle, No. 26721.
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1938
    ...3 Cir., 280 F. 271 (2); Yazoo & M. V. R. Co. v. Cockerham, 134 Miss. 887, 99 So. 14; Burho v. Minneapolis & St. L. R. Co., 121 Minn. 326, 141 N.W. 300; Saxton v. Delaware & Hudson Co., 256 N.Y. 363, 176 N.E. 425; Chicago, M. St. P. & P. R. Co. v. Linehan, 8 Cir., 66 F.2d 373......
  • Holz v. Chi., M., St. P. & P. R. Co., No. 27055.
    • United States
    • Supreme Court of Minnesota (US)
    • March 15, 1929
    ...cause of injury to the employee while engaged in the discharge of his duty in an interstate operation. Burho v. M. & St. L. R. Co., 121 Minn. 326, 141 N. W. 300; [224 N.W. 243]Ahrens v. C., M. & St. P. R. Co., 121 Minn. 335, 141 N. W. 297;Hurley v. Ill. Cent. R. Co., 133 Minn. 101, ......
  • Holz v. Chicago, M., St. P. & P. R. Co., No. 27055.
    • United States
    • Supreme Court of Minnesota (US)
    • March 15, 1929
    ...cause of injury to the employee while engaged in the discharge of his duty in an interstate operation. Burho v. M. & St. L. R. Co., 121 Minn. 326, 141 N. W. 300; 224 N.W. 243 Ahrens v. C., M. & St. P. R. Co., 121 Minn. 335, 141 N. W. 297; Hurley v. Ill. Cent. R. Co., 133 Minn. 101, ......
  • Request a trial to view additional results
37 cases
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 164 S.W. 310; Holtz v. Railroad Co., 176 Minn. 575, 224 N.W. 241; Burho v. Railroad Co., 121 Minn. 326, 141 N.W. 300; Texas & P. Ry. Co. v. Sprole, 202 S.W. 985. (c) The inference, from the failure of the coupler to operate, that the coupler......
  • Western & Atl. R. R v. Gentle, No. 26721.
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1938
    ...3 Cir., 280 F. 271 (2); Yazoo & M. V. R. Co. v. Cockerham, 134 Miss. 887, 99 So. 14; Burho v. Minneapolis & St. L. R. Co., 121 Minn. 326, 141 N.W. 300; Saxton v. Delaware & Hudson Co., 256 N.Y. 363, 176 N.E. 425; Chicago, M. St. P. & P. R. Co. v. Linehan, 8 Cir., 66 F.2d 373......
  • Holz v. Chi., M., St. P. & P. R. Co., No. 27055.
    • United States
    • Supreme Court of Minnesota (US)
    • March 15, 1929
    ...cause of injury to the employee while engaged in the discharge of his duty in an interstate operation. Burho v. M. & St. L. R. Co., 121 Minn. 326, 141 N. W. 300; [224 N.W. 243]Ahrens v. C., M. & St. P. R. Co., 121 Minn. 335, 141 N. W. 297;Hurley v. Ill. Cent. R. Co., 133 Minn. 101, ......
  • Holz v. Chicago, M., St. P. & P. R. Co., No. 27055.
    • United States
    • Supreme Court of Minnesota (US)
    • March 15, 1929
    ...cause of injury to the employee while engaged in the discharge of his duty in an interstate operation. Burho v. M. & St. L. R. Co., 121 Minn. 326, 141 N. W. 300; 224 N.W. 243 Ahrens v. C., M. & St. P. R. Co., 121 Minn. 335, 141 N. W. 297; Hurley v. Ill. Cent. R. Co., 133 Minn. 101, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT