Clay v. Chi., M. & St. P. Ry. Co.

• Decision Date: 27 March 1908
• Citation: 104 Minn. 1,115 N.W. 949
• Parties: CLAY v. CHICAGO, M. & ST. P. RY. CO. et al.
• Court: Minnesota Supreme Court

104 Minn. 1

115 N.W. 949

CLAY

v.CHICAGO, M. & ST. P. RY. CO. et al.

Supreme Court of Minnesota.

March 27, 1908.

Appeal from District Court, Mower County; Nathan Kingsley, Judge.

Action by Lewis Rex Clay against the Chicago, Milwaukee & St. Paul Railway Company and others. After verdict the plaintiff died, and Ida B. Clay as his administratrix was substituted. Judgment for plaintiff, and the railway company appeals. Affirmed.

Syllabus by the Court

While a railroad company has a right to construct its own road and to solve its own engineering problems in accordance with its own views and to determine what structures it will erect and at what places, it may not, without liability, thereby violate rules of law for the protection of passengers and employés.

It is the duty of a railway company to place its structures at a reasonably safe distance from its tracks, so as not to be dangerous to brakemen and other operatives upon the trains, or to warn them of such dangers if they exist. Its employés are not presumed to assume the risk of such perils, in the absence of notice. Johnson v. St. Paul, etc., Ry. Co., 43 Minn. 53, 44 N. W. 884, followed and applied.

Plaintiff, a minor, with only two months' experience as a freight brakeman, during which he had stopped at a particular station at most six times, was climbing down the side of a gondola pursuant to the orders of the conductor, without warning of danger from railway structures. He was struck by a platform five to nine inches distant from the side of the car, and injured. It is held:

(1) That the following questions were properly submitted to the jury:

Whether the defendant was guilty of negligence ‘in regard to the location and construction of the freight platform, and in regard to ordering plaintiff into a place of great hazard and danger without warning him thereof,’ and

Whether plaintiff was guilty of contributory negligence, or assumed the risk, or had knowledge or notice of the peril to which he was exposed.

(2) That the practical exoneration of the defendant conductor by verdict against the railway company only did not serve to conclusively show absence of negligence on the part of the railway company.

(3) That no such violation of the master's rules was shown as to preclude recovery.

After verdict, plaintiff died. His mother, as administratrix, was substituted as plaintiff. It is held that section 4064, Rev. Laws 1905, providing that, after a verdict, decision, or report of a referee fixing the amount of damages for a wrong, such action shall not abate by the death of either party, controls, and that section 4503 does not apply.

The verdict of $35,000 for injuries which resulted in plaintiff's death is held not to have been so excessive as to indicate passion or prejudice.

Other errors considered, and held not to justify granting a new trial. S. D. Catherwood, Webber & Lees, and Chas. E. Vorman, for appellant.

Lovely & Dunn and Lafayette French, for respondent.

JAGGARD, J.

Plaintiff was a head brakeman on a train of defendant and appellant railroad company. When the train arrived at the village of Lyle, which is a station on that line of road, orders were given by the conductor to cut off the engine and a coal or flat car from the train, to go in on the side track, to load on some scrap iron, which was then alongside of the track, upon the flat car, and to put the car back into the train for the purpose of being transported to its destination. The flat car was accordingly cut off by the plaintiff. The engine, with it coupled thereto, passed up beyond the switch, and then backed down upon the side track until the engine and the car reached a box car which was standing upon the tracks at or in the vicinity of the elevator and coalhouse on the east side of the track. A coupling was made to this box car, and the engine and the two cars were then backed down to the point south of the depot and platform referred to, where the scrap iron was which was to be loaded upon the flat car. At that point the scrap iron was loaded onto the flat car, signals were given, and the engineer moved the engine forward again toward the switch at the north end of the side track. The conductor of the train, Mr. Bennett, stood upon the box car. His intention was, when the box car reached the point where it should be left, viz., the point from which it had been removed, that he would ‘spot’ the car. Plaintiff was required to uncouple the box car from the flat car. The brake lever, an appliance which it became necessary for him to manipulate for the purpose of making the uncoupling, was located at the rear end of the flat car, and the handle of the lever was on the west side of that car-perhaps it is sufficiently accurate to say about the southwest corner of the car as it was then situated. There was a ladder and a stirrup, which were designed for the use of brakemen in climbing upon and getting down from cars of that character, and it appears that the plaintiff took a position upon this ladder for the purpose of performing his duty in uncoupling the cars, and when the car reached the platform which has been referred to he received the injuries, to recover damages for which he has brought this action.

This is substantially a part of the charge of the trial court. It will serve to clarify the record to amplify this statement. The platform in question was high enough to be on a level with the floor of an ordinary box car. There was testimony that there was only one other high platform on the Mason City division, and one on the I. & M. division. The car on which plaintiff was riding was 9.8 feet wide; the ordinary car, 9.2 feet wide. The edge of the platform was 6 feet from the center line of the house track. Its sharp corner projected within a few inches of the ladder rounds which plaintiff was using. According to one witness, the distance was 5 or 6 inches. There is an abundance of testimony that it was from 6 to 9 1/2 inches. When the accident occurred ‘it was in the nighttime-dark.’ The platform lay in the shadow of an electric light, which ‘light caused it to be a dark place up in there. The light shines out from the front. It did not give light to go beyond the depot at all. It is a dark hole right in behind the buildings.’ When plaintiff was hurt the lamps were lighted. The buildings thus referred to in the testimony as being opposite the platform were so near the track that the ordinary car would pass within 2 feet of them. There were other structures to the north and south of the platform where plaintiff was hurt.

The jury was justified in finding, further, that the engine, a gondola, and a standard box car passed down the side track. The intention was to separate and leave the box car at the coalhouse beyond the platform. To accomplish this the conductor's directions were that the engineer should give the cars a start, and that plaintiff should uncouple the standard from the gondola while in motion upon a signal from the conductor. The conductor, standing on the box car, was to ‘spot’ the standard at the coalhouse with the hand brake. The first time he gave the signal for slack, plaintiff did not succeed in making the uncoupling. The cars were then started again. Plaintiff was waiting for the signal by the conductor, and, so as to be sure this time to catch the slack, held onto the ladder and stood in the stirrup as previously described. He was not expressly commanded to assume this position, but so to do was reasonably in pursuance of the direction thus given. Eighteen days after the verdict plaintiff died. His mother, as administratrix, was substituted herein. The alternative motion for judgment notwithstanding the verdict or for a new trial was denied.

1. The first question on the merits concerns the defendant's negligence. The trial court submitted to the jury two bases of negligence: ‘(a) In regard to the location and construction of the freight platform; (b) in regard to ordering the plaintiff into a place of great hazard and danger without warning him of the hazard to which he was exposed thereby.’

(a) The location of the platform, defendant insists, was a matter with which the jury had nothing to do, first, because the usual and proper location of the platform was, and is, primarily an engineering proposition, properly to be determined by the objects to be accomplished by its use and with just regard for the average safety of all employés whom it may concern; second, because the evidence in this case did not warrant the submission to the jury of such a case. The testimony tended to show that this platform had a clearance distance from the track equal to that habitually employed by defendant and other companies. Such clearance distance as existed here was greater than is prescribed by the rule promulgated by the Railroad and Warehouse Commission for platforms for unloading grain. It conformed in height to the requirements of the statute. Section 2708, Gen. St. 1894; section 2003, Rev. Laws 1905. That under these circumstances defendant was not actionably negligent in the solution of its engineering problem we are referred to a line of authorities of which Tuttle v. Railway Co., 122 U. S. 190,7 Sup. Ct. 1166, 30 L. Ed. 1114, may be regarded as typical. At page 194 of 122 U. S.,page 1168 of 7 Sup. Ct. (30 L. Ed. 1114), Mr. Justice Bradley said: ‘Although it appears that the curve was a very sharp one at the place where the accident happened, we do not think that public policy requires the courts to lay down a rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passengers and the public is not involved; much less that it should be left to the varying and uncertain opinions of jurors to determine such an engineering question.’ See, also, Boyd v. Harris, 176 Pa. 489, 35 Atl. 22 (cattle chute too close to a side track); St. Louis National Stockyards Co. v. Burns, 97 Ill. 178;Mobile...