Carroll v. Minn. Valley R. Co.

• Decision Date: 01 January 1869
• Citation: 14 Minn. 42
• Parties: MILES CARROLL v. MINNESOTA VALLEY R. CO.
• Court: Minnesota Supreme Court

Page 42

14 Minn. 42

MILES CARROLL

v. MINNESOTA VALLEY R. CO.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the court of common pleas, Ramsey county.

Action for an injury to plaintiff caused by defendant's cars running against him. Plaintiff had a verdict.

Allis, Gilfillan & Williams, for appellant.

J. B. Brisbin and I. V. D. Heard, for appellant.

BERRY, J.

This action was before this court on a former occasion, when a new trial was granted, on the ground that the verdict was against evidence, in that it appeared that the plaintiff himself contributed by his own negligence to the injury complained of. The case is reported in Carroll v. Minnesota Valley R. Co. 13 Minn. 30, (Gil. 18.)

Upon the new trial substantially the same testimony was introduced as upon the first trial, with some additional testimony having a bearing upon the question of the plaintiff's negligence. The plaintiff obtained a verdict for $1,500, which the defendant insists cannot be sustained, because it appears from the evidence in the case that the plaintiff contributed to the injury by his own negligence.

It is undisputed that the boat Mollie Mohler, on which the plaintiff was employed as carpenter, was moored alongside of a side track of the defendant's railroad to receive and discharge passengers and freight, and that for that purpose its staging was run out over the side track; that there was a loose box car on the track below the staging, and an engine, lender, and two box cars in a train on the track above the staging; that the train came down the side track within a few feet of the staging, and then ran up the track a short distance and stopped; that it came down a second time and struck the staging, and shoved it against the car below; that the train then ran up the track again a short distance and stopped, and that while so running up the hindmost car of the train uncoupled, and stood upon the track eight or ten feet above the staging; that the plaintiff then went upon the track for the purpose of removing the staging, and while standing upon the track, with his back to the train, engaged in attempting to remove the staging, the train came down a third time, the uncoupled car struck the staging, and the plaintiff was caught between the car and staging, and severely injured.

It is also undisputed that the train came down the three times in the course of 10 minutes, and that no bell was rung at either time.

It was also undisputed and testified by the plaintiff that the grade above the boat was steep, — a short distance above, very steep, — and that owing to high water the boat was unable to land at the usual public landing, and for several days had moored at the place where it was at the time the plaintiff was injured, without objection.

It was also undisputed that it was the plaintiff's duty as carpenter to look after the staging, and that he, with others, made an attempt to haul it in standing upon the boat, but could not succeed in doing so, because one jaw of the staging was wedged under a rail of the track; that he ran out on the staging to turn it on its edge so that it could be hauled in; that while he was in the act of lifting it he was struck as before stated.

The plaintiff testified that he supposed if he did not remove the staging the train would come down again and break it up; that he did not suppose the train would come down while he was on the track; that the car below had the brakes on; that he could easily have taken the brakes off, could have done it in a minute, and then one man could have pushed it out of the way; that he made no effort to get it out of the way; that the staging being pressed against the car below it, and wedged fast under the rail of the track, it was necessary to turn it on its edge in order to extricate it, and that he could not turn it without standing upon the track with his back to the train; that he could not have seen the engineer if he had faced towards him; that he could not have seen anybody on the train while he was on the track, because of the box car standing loose above the staging; that it was impossible for any one on the train to see him on the track; that the cars ran very slowly when they came down the second and third times; that he had been there about a minute when he was hit, and that the grade made it more dangerous to be on the track than it otherwise would have been.

It appears then that the plaintiff, knowing that the train was on a steep grade; that it had backed down twice within a few minutes, striking the staging the second time, and leaving an uncoupled car only eight or ten feet above the staging, the rest of the train stopping a short distance above; seeing the staging pressed against the car below, and wedged fast under the rail, and expecting that if the staging was not removed the train would come down and crush it; knowing that no bell had been rung at either the first or second time when the train came down, — placed himself on the track in a position where he could not see the engineer, nor the engineer him, with his back to the train, for the purpose of removing and saving...