Chicago, St. P., M. & O. Ry. Co. v. Nelson

• Decision Date: 07 July 1915
• Docket Number: 4359.
• Citation: 226 F. 708
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. NELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F. 708

CHICAGO, ST. P., M. & O. RY. CO. v. NELSON.

No. 4359.

United States Court of Appeals, Eighth Circuit.

July 7, 1915

[Copyrighted Material Omitted]

For convenience the parties will be referred to as they appeared in the court below, the defendant in error as the plaintiff and the plaintiff in error as the defendant. The facts material to a determination of the issues involved herein, as set out in the complaint, are that plaintiff's intestate who was her husband, was in the employ of the city of Minneapolis, engaged in assisting in the construction of a sewer in that city, which was to be laid, in part, under the tracks of the defendant; the work had been begun near the west bank of the Mississippi river and progressed to the east; that on the day of the accident, which resulted in the death of Nelson, the work was progressing under one of the tracks of the defendant, and it was the duty of the decedent to stand upon said tracks between the rails and hand to the workmen in the sewer sheathing to be used to prevent the dirt and sand from falling into the excavation for the sewer; that at the place where the accident occurred there were a large number of switch tracks, over which switching trains were continuously running back and forth, causing a great deal of noise; that while the decedent was thus lawfully occupied in his employment, facing east, the defendant carelessly and negligently caused a train, consisting of an engine and five freight cars, to back rapidly, ringing no bell, and having placed no flagman or other guard, either at the place where the work was being done or on the rear car of the train, or giving any signal or other warning of any sort whatsoever of the approach of the train; that by reason of its negligence the decedent was run over, and so seriously injured that he died soon after from said injuries, leaving a wife and daughter, who were wholly dependent on him, surviving.

During the trial the plaintiff was permitted to amend the complaint by specifically alleging that at the time of the accident it was the rule and custom of the defendant to have a brakeman or watchman on the rear car of a moving train when backing. This was against the objections of the defendant ant and was excepted to. The answer pleaded contributory negligence and want of ordinary care; assumption of risk of said danger; that the sewer construction was 'done under and by virtue of a contract of license duly entered into by and between the city of Minneapolis and this defendant, which contract bears date July 7, 1913, and that in said work of sewer construction the employes of the city of Minneapolis were present on the premises of the defendant, and in, under, and about its switching tracks; and that in said contract of license for the construction of said sewer, among other things, it is provided by paragraph 5, as follows: 'The said city will so construct and maintain said sewer that it shall not at any time damage the tracks or other property of said railway company, or be a menace to the safety of its operation, and will indemnify and save harmless the said railway company from all loss and damage to its tracks, roadbed, structures, rolling stock, and its other property, and from injuries to persons and to their property, caused while making, maintaining, or repairing the said sewer across the land of said railway company."

The trial was to a jury, which returned a verdict for the plaintiff. A motion for a new trial was filed by the defendant and by the court overruled. The assignments of error are 30 in number, many of them merely repetitions, and others to the effect that the verdict of the jury was against the evidence and against the law. The assignments of error upon which the defendant, in its brief, relies for a reversal are: (1) The refusal of the court to direct a verdict in its favor. (2) That the court erred in submitting to the jury the question of negligence in running the train at a high rate of speed. (3) That the court erred in submitting to the jury the question whether the bell on this engine was ringing when the train backed. (4) That it was error to submit to the jury the question whether it was negligence on the part of the defendant in not having a guard at the place of the accident or on the rear car of the train while it was backing. (5) That the court erred in refusing to instruct the jury that the decedent assumed the risk, in the absence of proof that it was the custom of the defendant to have a man on the rear car of a train when backing. (6) That it was error to refuse the introduction by the defendant of its contract with the city of Minneapolis in relation to the construction of the sewer under its tracks.

George W. Peterson and James B. Sheean, both of St. Paul, Minn., for plaintiff in error.

Jesse Van Valkenburg, of Minneapolis, Minn., for defendant in error.

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