Cunningham v. Chicago, M. & St. P.R. Co.

• Decision Date: 16 July 1883
• Citation: 17 F. 882
• Parties: CUNNINGHAM v. CHICAGO, M. & ST. P.R. CO.
• Court: U.S. District Court — District of Minnesota

17 F. 882

CUNNINGHAM v. CHICAGO, M. & ST. P.R. CO.

United States Circuit Court, D. Minnesota.

July 16, 1883

This is an action brought by Mrs. Mary Cunningham to recover the sum of $5,000 damages for the death of Thomas McCarthy, the son of this plaintiff, which was caused by his being run over by a switch-engine, while he was in the employ of this defendant as such yardman. Defendant sets up contributory negligence as a defense.

The complainant alleges that the deceased was engaged in the employ of the defendant as yardman, in the city of St. Paul and that it was necessary for him as such yardman to get on and off cars and engines while the same were in motion; that the engines in use for such yard business are what are called switch-engines, and are usually provided with foot-boards and hand-railings for the use and safety of the employes working around them; that on the first day of December, 1880, while the deceased was so employed, the said engine was so unskillfully, negligently, and improperly constructed and operated by defendant that the said John McCarthy was thrown from and run over by said engine, and received such injuries as resulted in his death on the tenth of December, 1880; that at the time of the accident the rear foot-board on said engine was partly broken; of which defendant had due notice and which was unknown to this deceased. Answering this, the defendant admits the employment of the deceased, and that it was necessary for him as such yardman to ride upon said engine and cars; but denies that it was necessary for him, in the usual course of his employment, to get on or off said cars and engine while the same were in motion, and denies that said engines are usually provided with hand-railings or foot-boards to enable the yardmen or brakemen to get on and off the said engine while in motion. Defendant admits that deceased, on or about December 1, 1880, while engaged as yardman, attempted to board said switch-engine, and in doing so slipped and fell, and received injuries from which he died on or about the tenth of December, 1880, but denies that deceased was in the proper performance of his duties, or that the engine was improperly or unskillfully constructed or handled. Defendant admits that at the time of the accident the rear hand-rail of said engine was wholly broken off and was absent; also that a small piece of the rear foot-board was and had been broken off for a long time prior to said accident; but alleges that the same was known to deceased and that in all other respects said engine was in a good safe, and proper condition. Defendant denies that said accident was owing to any carelessness, omission, negligence or want of skill on the part of the defendant, and alleges that said accident occurred solely and entirely from the negligence and carelessness of the deceased.

Upon the trial of the case the following facts were uncontroverted: That on the first of December, 1880, the deceased was in the employ of the defendant in its switching yard in St. Paul, as yardman, where his duties were to couple and uncouple and switch cars, and ride to and fro upon the cars and engines as the necessity of the case demanded, being one of a crew of three who worked in the yard with one of the switch-engines of said defendant company; that he came down about 7 o'clock in the morning from the upper to the lower yard in the cab of the engine in question on the main line; that he then coupled the engine to a car on a side track, and on that car being switched onto another side track, rode down on said car, set the brakes on it, and then came onto the track on which the engine was backing towards him, stood in the middle of the track and attempted to board the engine, and in so doing fell between the rails, was run over by the engine, and received injuries of which he died. As to the manner in which he fell there is a dispute in the evidence to which we will refer hereafter. The evidence is that the engine was proceeding at a rate of from one to three miles an hour, but there is no proof that it was carelessly or unskillfully handled by those in charge of it. It is in proof that the switch-engines in use in this yard are fitted with foot-boards at each end, (there being no pilot) about 6 feet long, extending 6 or 8 inches beyond the wheels of the engine, and 8 or 10 inches wide, and reaching about 10 inches from the level of the ground; and said engines are also provided with a hand-rail in front and rear, running the width of the engine or tank,-- the hand-rail on the rear part of the engine being, when in position, about 6 inches above the bed of the tank; and that there is the usual iron step and vertical hand-railing on each side of the engine, leading to the cab.

It is conceded that there was no hand-rail on the rear end of the engine in question, it having been pulled off the night before by the night crew that worked on said engine. It is also conceded that there was a piece broken from one end of the foot-board about 2 inches wide and 18 inches long, running out to a point; but it is in proof that this defect in the foot-board had nothing whatever to do with, and in no way contributed to, the accident to the deceased, for the reason that where he stepped, or attempted to step, the foot-board was unbroken. The engineer of the engine in question stated that he had notified the master mechanic that the rear hand-railing was broken off some four or five days previous to the accident, and also that the foot-board was broken, by message and by letter to that effect. He also stated that the deceased was a skillful and experienced railroad man, and had been three or four months in the yard; that he had not ridden on this particular engine before, but had worked...