Davy v. Great Northern Railway Co.

• Decision Date: 12 October 1910
• Citation: 128 N.W. 311,21 N.D. 43
• Court: North Dakota Supreme Court

128 N.W. 311

21 N.D. 43

J. B. DAVY v. GREAT NORTHERN RAILWAY COMPANY

Supreme Court of North Dakota

October 12, 1910

Appeal from District Court, Grand Forks county; Templeton, J.

Action by J. P. Davy against Great Northern Railway Company for personal injuries.

Plaintiff had judgment. Order denying new trial reversed and new trial granted.

Order denying a new trial reversed and a new trial granted.

Murphy & Duggan, for appellant.

Railway employees, such as section hands, must look out for trains and train operators may assume this, and are not bound to keep lookout for them, 3 Elliott, Railroads, §§ 1290-1298 A; 4 Thomp. on Neg. § 4781; Missouri P. R Co. v. Moseley, 6 C. C. A. 641, 12 U.S. App. 601, 57 F 924; Bedford Quarries Co. v. Bough, 168 Ind. 671, 14 L.R.A.(N.S.) 418, 80 N.E. 529; Ellis v. Southern R Co. 90 C. C. A. 270, 163 F. 686; Shepard v. Boston & M. R. Co. 158 Mass. 174, 33 N.E. 508; Lynch v. Boston & A. R. Co. 159 Mass. 536, 34 N.E. 1072; Bengston v. Chicago, St. P. M. & O. R. Co. 47 Minn. 486, 50 N.W. 531; McCadden v. Abbot, 92 Wis. 551, 66 N.W. 694; Chicago, R. I. & P. R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Nixon v. Chicago, R. I. & P. R. Co. 84 Iowa 331, 51 N.W. 157; Loring v. Kansas City, Ft. S. & M. R. Co. 128 Mo. 349, 31 S.W. 6; Grand Trunk R. Co. v. Baird, 36 C. C. A. 574, 94 F. 950; Olson v. St. Paul, M. & M. R. Co. 38 Minn. 117, 35 N.W. 866; Railway Co. v. Leech, 41 Ohio St. 391; Wabash R. Co. v. Skiles, 64 Ohio St. 458, 60 N.E. 576; Spicer v. Chesapeake & O. R. Co. 34 W.Va. 514, 11 L.R.A. 385, 12 S.E. 553; Christy v. Chesapeake & O. R. Co. 35 W.Va. 117, 12 S.E. 1111; Everett v. Great Northern R. Co. 100 Minn. 309, 9 L.R.A.(N.S.) 703, 111 N.W. 281, 10 A. & E. Ann. Cas. 294; New York, C. & St. L. R. Co. v. Martin, 35 Ind.App. 669, 72 N.E. 654; Harty v. Central R. Co. 42 N.Y. 468; Cleveland, A. & C. R. Co. v. Workman, 66 Ohio St. 509, 90 Am. St. Rep. 602, 64 N.E. 582; Hinz v. Chicago, B. & N. R. Co. 93 Wis. 16, 66 N.W. 718; Baker v. Chicago, R. I. & P. R. Co. 95 Iowa 163, 63 N.W. 667; Guthrie v. Great Northern R. Co. 76 Minn. 277, 79 N.W. 107; Schulz v. Chicago, M. & St. P. R. Co. 57 Minn. 271, 59 N.W. 192; Murran v. Chicago, M. & St. P. R. Co. 86 Minn. 470, 90 N.W. 1056; Jolly v. Detroit, L. & N. R. Co. 93 Mich. 370, 53 N.W. 526; Beach, Contrib. Neg. §§ 133-138.

Rule different where employment engages the whole attention. Blount v. Grand Trunk R. Co. 9 C. C. A. 526, 22 U. S. App. 129, 61 F. 375; 20 Am. & Eng. Enc. Law, p. 145, and cases cited; Holland v. Chicago, M. & St. P. R. Co. 18 F. 243.

Employees must anticipate train's approach at any time. Loring v. Kansas City, Ft. S. & M. R. Co. 128 Mo. 349, 31 S.W. 6; Shepard v. Boston & M. R. Co. 158 Mass. 174, 33 N.E. 508; Olson v. St. Paul, M. & M. R. Co. 38 Minn. 117, 35 N.W. 866.

Persons on track away from stations or crossings have no right to rely upon signals. Reynolds v. Great Northern R. Co. 29 L.R.A. 695, 16 C. C. A. 435, 32 U.S. App. 577, 69 F. 808; Kirtley v. Chicago, M. & St. P. R. Co. 65 F. 386; Blount v. Grand Trunk R. Co. 9 C. C. A. 526, 22 U.S. App. 129, 61 F. 375; Olson v. St. Paul, M. & M. R. Co. 38 Minn. 117, 35 N.W. 866; Magee v. Chicago & N.W. R. Co. 82 Iowa 249, 48 N.W. 92; Holland v. Chicago, M. & St. P. R. Co. 18 F. 243; Nixon v. Chicago, R. I. & P. R. Co. 84 Iowa 331, 51 N.W. 157.

It was contributory negligence to walk on track without any observance as to approaching trains. Ring v. Missouri P. R. Co. 112 Mo. 220, 20 S.W. 436; Hammond v. Chicago & G. T. R. Co. 83 Mich. 334, 47 N.W. 965; Keefe v. Chicago & N.W. R. Co. 92 Iowa 182, 54 Am. St. Rep. 542, 60 N.W. 503; Hinz v. Chicago, B. & N. R. Co. 93 Wis. 16, 66 N.W. 718; Illinois C. R. Co. v. Lee, 71 Miss. 895, 16 So. 349.

Calder & Germain, and Guy C. H. Corliss, for respondent.

It was negligence to run a train through a yard, near a station, at high speed, in a blinding snow storm, with snowplow throwing clouds of snow, the bell being "out of commission," without giving signals to persons lawfully on the track. St. Louis & T. H. R. Co. v. Eggmann, 60 Ill.App. 291, affirmed in 161 Ill. 155, 43 N.E. 620; Coulter v. Great Northern R. Co. 5 N.D. 568, 67 N.W. 1046; Chicago & A. R. Co. v. Dillon, 123 Ill. 570, 15 Am. St. Rep. 559, 15 N.E. 181; Kelly v. Southern Minnesota R. Co. 28 Minn. 98, 9 N.W. 588; Guggenheim v. Lake Shore & M. S. R. Co. 66 Mich. 150, 33 N.W. 161; Anderson v. Great Northern R. Co. 15 Idaho 513, 99 P. 91; Nichols v. Chicago, B. & Q. R. Co. 44 Colo. 501, 98 P. 808; Gesas v. Oregon Short Line R. Co. 33 Utah 156, 13 L.R.A.(N.S.) 1074, 93 P. 274; Illinois C. R. Co. v. Murphy, 123 Ky. 787, 11 L.R.A. (N.S.) 352, 97 S.W. 729.

An employee not under obligations to expect a train is not guilty of contributory negligence if he fails to keep a lookout. Sobieski v. St. Paul & D. R. Co. 41 Minn. 169, 42 N.W. 863; Scott v. St. Louis, I. M. & S. R. Co. 79 Ark. 137, 116 Am. St. Rep. 67, 95 S.W. 490, 9 A. & E. Ann. Cas. 212; French v. Taunton Branch R. Co. 116 Mass. 537; McGhee v. White, 13 C. C. A. 608, 31 U. S. App. 366, 66 F. 502; Ferguson v. Wisconsin C. R. Co. 63 Wis. 145, 23 N.W. 123; Phillips v. Milwaukee & N. R. Co. 77 Wis. 349, 9 L.R.A. 521, 46 N.W. 543; Duane v. Chicago & N.W. R. Co. 72 Wis. 523, 7 Am. St. Rep. 879, 40 N.W. 394; Palmer v. Detroit, L. & N. R. Co. 56 Mich. 1, 22 N.W. 88; Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398, 7 N.E. 801; Baker v. Kansas City, Ft. S. & M. R. Co. 122 Mo. 533, 26 S.W. 20; Bowen v. New York C. & H. R. R. Co. 89 Hun, 594, 35 N.Y.S. 540; York v. Maine C. R. Co. 84 Me. 117, 18 L.R.A. 60, 24 A. 790; Randall v. Connecticut River R. Co. 132 Mass. 269; Alabama & V. R. Co. v. Summers, 68 Miss. 566, 10 So. 63.

Employee is not careless who assumes that the railroad company will not be. Elgin, J. & E. R. Co. v. Hoadley, 220 Ill. 462, 77 N.E. 151; Thomp. Neg. §§ 3772, 4518, 4519; St. Louis & T. H. R. Co. v. Eggmann, 60 Ill.App. 291, affirmed in 161 Ill. 155, 43 N.E. 620; Shoner v. Pennsylvania Co. 130 Ind. 170, 28 N.E. 616, rehearing 130 Ind. 179, 29 N.E. 775; Atchison, T. & S. F. R. Co. v. McElroy, 76 Kan. 271, 13 L.R.A.(N.S.) 620, 123 Am. St. Rep. 134, 91 P. 785.

Employee can lawfully rely on night operator's statement as to movement of trains. Gesas v. Oregon Short Line R. Co. 33 Utah 156, 13 L.R.A.(N.S.) 1074, 93 P. 274; Sheridan v. Baltimore & O. R. Co. 101 Md. 50, 60 A. 280; Texas & N. O. R. Co. v. McDonald, Tex. Civ. App. , 85 S.W. 493.

OPINION

SPALDING, J.

The plaintiff brought this action against the defendant railroad company to recover for injuries received by being struck by a snowplow operated by defendant. The appeal is from an order denying judgment notwithstanding the verdict and a new trial and from the judgment entered on the verdict in favor of the plaintiff. In brief the case may be stated as follows: About 8 o'clock on the morning of January 25, 1907, plaintiff, who was in the employ of the defendant as section hand at Bartlett station, in company with three other section hands, was sent by the foreman from the station at Bartlett to shovel snow into an engine standing on the passing track about 1,600 feet west of the station. A blizzard had been raging two days prior to the accident, and the line of the defendant was blockaded and trains were tied up. At this station, about 8 feet north of the main track, is a passing track extending for a distance of 2,000 feet east and a like distance west of the station house. Passenger train No. 6 had been stalled on the passing track for more than twenty-four hours. It was east bound, with two engines, and the first engine was about 50 feet west of the depot door, and the train extended westerly 500 or 600 feet. There was a little breeze from the northwest, and the temperature was about 30 degrees below zero. Plaintiff and his companions were dressed in fur-lined coats, the collars turned up, and their caps were drawn down over the ears. Plaintiff testifies that before he left the station he was told by the night operator that no trains were coming, and, when he left the depot, the block signal was out. The operator denies telling him so. This block signal standing out was to notify incoming trains to stop at the station. Passenger train No. 1 is a through limited train running west, and passes through Bartlett station at full speed, or nearly so, without stopping. A crew consisting of an engineer and fireman and brakeman and others was sent west from Grand Forks on the 26th, with orders to run as the first section of No. 1, and clear the track of snow. This crew was in charge of an outfit, consisting of an engine preceded by a car loaded with coal to hold it down, and on the front of which was a snowplow with high flanges. Plaintiff and his companions walked west on the main track for the reason that the stalled passenger train prevented their walking on the side track, and after passing the train it was easier to walk on the main track than on the side track, because there was less snow on the latter. When they had proceeded about 1,400 feet west from the station, one of plaintiff's companions happened to turn his head to the rear, saw the snowplow close upon them, and warned his companions to jump. All succeeded in clearing the snowplow except the plaintiff, who was hit and injured. No question is made as to the amount of the verdict; it being conceded that, if he is entitled to recover at all, the judgment of $ 2,000 is not excessive. The engineer had been directed to open up the line for trains following and those which might be stalled ahead of him. The bell was clogged with snow, and could not be rung; and the engineer was advised at different stations, including Lakota, 4 miles east of Bartlett, that the track was clear. It is shown that in opening a snow...