Cameron v. Great Northern Railway Company
| Decision Date | 11 November 1898 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Glaspell, J.
Action by Esther M. Cameron against the Great Northern Railway Company. Judgment for defendant. Plaintiff appeals.
Reversed.
Judgment reversed, and a new trial ordered.
Bosard & Bosard, for appellant.
It is the duty of the master not to expose his servant to extraordinary danger by putting him to work in dangerous places, or with dangerous appliances or machinery. 2 Thomp on Neg. 972; Wood's Master and Servant, 329; Deerings Neg. 198; Russell v. Mfg. Co., 77 Am. Dec. 212; Hough v. Ry. Co., 100 U.S. 217. The master is bound to use reasonable care to keep his machinery in safe and serviceable condition, and to make seasonable inspection of its condition. Chicago, etc., Ry. Co. v. Jackson, 55 Ill. 492; Chicago, etc., Ry. Co. v. Bragionier, 11 Ill.App. 516; Bram v. Ry. Co., 53 Ia. 395; S. C. 36 Am. Rep. 243; Atchison Ry. Co. v. Holt, 29 Kan. 149; Cincinnati, etc., Ry. Co. v. McMullen, 117 Ind. 439; N. P. Ry. Co. v. Herbert, 116 U.S. 642; Morton v. Detroit Ry. Co., 46 N.W. 111; Grannis v. Ry Co., 46 N.W. 1067; Sheedy v. Ry. Co., 37 N.W 60; Gates v. Ry. Co., 57 N.W. 200. The deceased may have known of the broken car step, and yet the various duties occupying his attention so have occupied his mind, that he momentarily forgot it. This is not such negligence as would bar a recovery. Fiero v. Ry. Co., 24 N.Y.S. 805. It is not contributory negligence for an employe to remain in service of railroad company coupling cars over open frog after knowing that a safety block would remove its peril. Seley v. Ry. Co., 23 P. 751; Pullman Car Co. v. Lack, 3 N.E. 285; Martin v. Ry. Co., 29 P. 645; Kansas City, etc., Ry. Co. v. Flynn, 18 A. & E. Ry. Cas. 23; Keen v. Ry. Co., 128 U.S. 91; 2 Thomp. Neg. 1070; Parker v. Ry. Co., 6 A. & E. Ry. Cases 731. The question of contributory negligence was for the jury. Highland v. Ry. Co., 5 A. & E. Ry. Cases 719; Wright v. Ry. Co., 5 A. & E. Ry. Cases 560; 2 Jaggard on Torts 1073; Simonds v. City, 67 N.W. 40. Mere knowledge of the defect did not charge Cameron with assumption of the risk. Mahoney v. Dore, 30 N.E. 366; Cook v. Ry. Co., 34 Minn. 45; Russell v. Ry. Co., 32 Minn. 233. The law presumes that a person who has suffered death by railroad accident, was at the time of the accident in the exercise of due care. Kansas City, etc., Ry. Co., v. Flynn, 18 Am. & Eng. Ry Cases 23; Adams v. Co., 41 Am. & Eng. Ry. Cases 414. There is no presumption that Cameron had notice of defective condition of car, because it might have been discovered by inspection. Cincinnati, etc., Ry. Co. v. McMullen, 117 Ind. 439. Where the evidence conflicts or is capable of different interpretations it is the jury's province to pass upon it. Belton v. Baxter, 58 N.Y. 411; Hart v. Hudson, etc., Co., 80 N.Y. 622; Connor v. Ry. Co., 4 N.E. 441; Cleveland Ry. Co. v. Crawford, 24 Ohio St. 631; Robertson v. Ry. Co., 35 N.E. 775; Emery v. Ry. Co., 9 S.E. 139; Spaulding v. Ry. Co., 67 N.W. 227; Rolseth v. Smith, 35 N.W. 565; Creamy v. Long Island R. Co., 5 N.E. 425; Kellogg v. Ry. Co., 79 N.Y. 72; Lee v. Gas Co., 98 N.Y. 115; Sturry v. Ry. Co., 10 N.E. 128; Whittaker v. Canal Co., 27 N.E. 1042; Galvin v. Mayer, 19 N.E. 675. Contributory negligence is seldom a question of law. O'Brien v. McGlinchy, 68 Me. 552; Brown v. Ry. Co., 58 Me. 384; Sleeper v. Ry. Co., 58 N.H. 520; Elwell v. Hacker, 30 A. 64; Nugent v. Ry. Co., 12 A. 797. It was error in this case for the Court to direct verdict for defendant, there being no eye witness to the accident and no affirmative evidence of negligence on the part of deceased. Galvin v. Mayor, 19 N.E. 675; Rolseth v. Smith, 35 N.W. 565. Where the proof is not convincing, and the question of contributory negligence is one which must be arrived at from inference concerning which reasonable men may honestly differ the question is for the jury. Richmond, etc., Ry. Co. v. Powers, 149 U.S. 443; Omaha Street Ry. Co., v. Martin, 66 N.W. 1007; Russell v. Dillworth, 2 A. 355; Baltimore, etc., Ry. Co. v. Meyers, 62 Fed Rep. 367; N. P. Ry. Co. v. Austin, 64 F. 211; Kellogg v. Ry. Co., 79 N.Y. 76; Hanks v. Ry. Co., 18 N.E. 218.
W. E. Dodge and Burke Corbet, for respondent.
There was no judgment entered below from which an appeal could be taken, and no appeal was attempted from the order of dismissal. Sec. 5479 Rev. Codes; Secs. 5480, 5488, subd. 2, § 5489, Rev. Codes. A final judgment is without force until entered in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523; Locke v. Hubbard, 9 S.D. 364, 69 N.W. 588. It may fairly be presumed that a servant knows the condition of machinery and appliances which he has constant opportunity to inspect and which his regular duties bring under his notice. 1 Shear. & R. on Neg. 216; Railroad Co. v. Marker, 41 Ark. 542; Sheets v. Sheldon, 103 N.Y. 667; Brossman v. Ry. Co., 113 Pa. 490; Houston Ry. Co. v. McNamara, 59 Tex. 255. The evidence does not disclose to what cause death is attributable. If it is as reasonable to believe that the accident happened as the result of some other cause than that assigned there can be no recovery. The question cannot be left to conjecture. Philadelphia, etc., Ry. Co. v. Schertle, 2 Am. & Eng. R. Cases 158; Orth v. Ry. Co., 47 Minn. 384; Bailey's Master's Liability 503, 508; Koslowski v. Thayer, 66 Minn. 150; Moore v. Ry. Co., 67 Minn. 396. When liability depends upon carelessness or fault of a person or his agents, the right of recovery depends upon the same being clearly shown by competent evidence. Sorenson v. Menasha P. & P. Co., 56 Wis. 338, 14 N.W. 446. The duty of plaintiff's intestate, a conductor of experience, was to inspect the train and the conditions relative to the removal of the steps. Forwarding the car to the end of his run was not unusual or hazardous employment, such hazard and risk he accepted with his employment. Puffer v. Ry. Co., 68 N.W. 39; Clark v. Ry. Co., 28 Minn. 128; Kelly v. Ry. Co., 35 Ill. 106; Gibson v. Ry. Co., 63 N.Y. 449; Haden v. Mfg. Co., 29 Conn. 548; Devitt v. Ry. Co., 50 Mo. 302; Baylor v. Ry. Co., 40 N.J.L. 23; Woods Master and Servant 680, 718; Patterson Ry. Accdt. Law 344.
This action is brought by the widow of Edward James Cameron to recover damages for the alleged negligence of the defendant in causing the death of the said Cameron. The action was tried to a jury, and at the close of the plaintiff's evidence the case was withdrawn from the consideration of the jury, and the action dismissed. This ruling is assigned as error in this Court, and the only question that need be determined here is whether such ruling was error.
There is little dispute in the evidence as to the existence of the determining facts of the case. The record shows that the decedent was at the time of his death a passenger train conductor in defendant's employ; that on the 17th day of November, 1894, he was killed by falling or being thrown from the passenger train of the defendant then in his charge as conductor; that such accident occurred in the county of Grand Forks, N. D., about midway between the station of Arvilla and the next station, situated about seven miles east of Arvilla and named "Emerado." The train was east bound, and was the regular Pacific passenger train, consisting of nine cars, and running between Seattle, Wash., and St. Paul, Minn. The accident occurred between 6:43 and 6:52 p. m., and at a time when the train was running at a high rate of speed. The train reached Grand Forks at 7:25 p. m., and there the conductor was missed; and, on being searched for, his body was found at the place above indicated. The evidence shows that the right shoulder of the deceased was crushed down, and one of his arms broken. His skull was also broken. A physician testified that death resulted immediately, or almost immediately, as a consequence of said injuries. The deceased had taken charge of the train at Minot, N. D. It appears that the deceased was seen alive just after the train passed Arvilla; and there is evidence tending to show that a very few minutes before the accident the deceased was seen in the rear sleeper, the last car of the train, passing through the car towards the rear end of the car, but no witness testifies to having seen him pass out of the back door of the car and onto the rear platform at that time, or at all that day. It appears that the train in question, while backing into the station at Great Falls, Mont., met with an accident whereby the steps leading to the platform were broken, which steps were located at the rear end, and on the left and north side, of the last car in the train, which car was a sleeper, and was the same car on which the deceased, so far as shown by the evidence, was last seen alive. The rear platform of this sleeper was about five feet wide across the car, and about three feet the other way. Counsel, in discussing the case in this Court, have assumed that the rear end of a platform on the last car of a passenger train is supposed to be guarded by a chain, which is so made that it can be fastened and unfastened; but the evidence in this case fails to show whether there was or was not such a chain on this car. After the steps had been broken, and before the train left Great Falls, Mont., the broken steps were removed by the employes of the defendant, and the bolts which fastened the steps were laid on the rear platform of the sleeper; and the car came east in the train, and continued to be the rear car, and said steps were absent and not on the car at any time until after it reached Grand Forks, N. D. The evidence fails to disclose whether the defendant has a car shop or other...
To continue reading
Request your trial