Ciebattone v. Chi. Great W. Ry. Co.

• Decision Date: 16 July 1920
• Docket Number: No. 21867.,21867.
• Parties: CIEBATTONE v. CHICAGO GREAT WESTERN RY. CO. et al.
• Court: Minnesota Supreme Court

146 Minn. 362

178 N.W. 890

CIEBATTONE

v.CHICAGO GREAT WESTERN RY. CO. et al.

No. 21867.

Supreme Court of Minnesota.

July 16, 1920.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by Hyacinth D. Ciebattone, as administrator of the estate of Antonio Pieri, deceased, against the Chicago Great Western Railway Company and others. Action dismissed at the close of plaintiff's case, and from an order denying his motion for a new trial, he appeals. Order affirmed.

Syllabus by the Court

In a railroad yard, where engines and cars are constantly moving to and fro and all men employed about the yard know that moving engines and cars may be encountered on any track at any time, there is ordinarily no obligation on the part of the railroad company to give warning of their approach to employés familiar with the operation of the yard.

The evidence does not show that defendants failed to give timely warning to a section man of the approach of a car switched to a track where he was at work after discovering that he was unaware of its approach, and they cannot be charged with wanton negligence. Humphrey Barton, of St. Paul, for appellant.

Briggs, Weyl & Briggs, of St. Paul, for respondents.

LEES, C.

The administrator of the estate of Antonio Pieri, deceased, brought this action to recover damages for his death, alleged to have been caused by the negligence of defendants, and appeals from an order denying his motion for a new trial after a dismissal of the action at the close of his case. The railroad company and Thomas, one of its section men, Leaon, the foreman of its section crew, Roed, the foreman of its switching crew, and Spires, a switchman, were joined as defendants.

Pieri was one of the section crew employed in the defendant company's freight yards in West St. Paul. On the day of the accident Thomas was engaged in replacing the angle bars on a rail in the ‘motor’ track, one of eight tracks running from the same lead track.

Called by plaintiff as a witness for cross-examination under the statute, Thomas testified that the accident happened between 2 and 3 o'clock in the afternoon; that about 20 minutes before it happened he had begun to replace the angle bars, and was engaged in doing so when Pieri came and started to change the angle bars at the further end of the rail and about 12 feet from him; that, when Pieri started to work, he said to him, ‘Tony, don't take the old bolts, because they going to switch here; just leave that track safe;’ and Pieri replied, ‘Yes, I know.’ About 10 minutes later a freight car was ‘kicked’ onto the motor track by a switch engine. Thomas was between the car and Pieri, saw the car when it was 4 or 5 feet from him, got out of the way, and shouted, ‘Look out!’ but Pieri failed to discover the car in time to escape and was run down and fatally injured.

The only other witness called by plaintiff was one Anderson, a member of the switching crew, who testified that directly after the accident Pieri said to him, ‘Nobody told me to look out.'

Both Thomas and Anderson testified that it was not the custom in the yard to have a brakeman ride a freight car when it was ‘kicked’ from one track to another, that the yard was level, and that switching was going on at all hours of the day. Anderson testified that the car which caused Pieri's death was one of a string of 18, and was the sixteenth that was switched from the lead track. Thomas testified that two cars were switched over the motor track before Pieri came there, and that other cars were switched to the tracks running off the lead track. The witnesses marked on a blueprint of the yard the place where Thomas and Pieri were working while the switching was going on. The blueprint shows that five of the tracks ran into the lead track substantially where Pieri was working, and the other three within 30 feet. If cars were switched to any of the five tracks, they would have passed so near him that he must have noticed them. Anderson testified that all but the second, third, and fifth of the string of cars went over one or another of these five tracks. The cars moved at a speed of only 5 or 6 miles an hour. Pieri had been employed by the defendant company as a section man for 14 years, was a trackwalker part of the time, and necessarily was familiar with the yard and the manner in which cars were moved about in it.

1. The learned trial court was of the opinion that the facts in this case and in Aerkfetz v. Humphrey, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758, were substantially the same, and that, since the doctrine of that case has been adopted in this state (Beecroft v. G. N. Ry. Co., 134 Minn. 86, 158 N. W. 800;Thayer v. Hines, 176 N. W. 752), plaintiff failed to prove actionable negligence on the part of any of the defendants. The doctrine is that in a railroad yard, where engines and cars are constantly moving to and fro and all men employed about the yard know that moving engines and cars may be encountered...