Dolge v. Northern Pacific Railway Company
| Decision Date | 26 February 1909 |
| Docket Number | 16,041 - (269) |
| Citation | 119 N.W. 1066,107 Minn. 242 |
| Parties | THEODORE DOLGE v. NORTHERN PACIFIC RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by the administrator of the estate of Charles A. Dolge, deceased against defendant railway company and John Schmidt, one of its section foremen, to recover $5,000 for the death of the intestate. The complaint alleged that defendant negligently furnished the intestate with a road bed containing a split switch, the point of which was so far removed from the main rail that it constituted a trap for the feet of its employees, including the intestate, and permitted his feet to catch therein and did hold them and by reason thereof he was run down and killed. The answer of the defendant company contained a general denial and allegation that the injury was caused solely by the negligence of intestate and the risks incident to the employment. The case was tried before Frederick V. Brown, J., who directed a verdict in favor of defendant Schmidt. The jury returned a verdict against defendant company for $3,500. From an order granting defendant company's motion for judgment notwithstanding the verdict, plaintiff appealed. Affirmed.
Railway -- Split Switch.
The proper throw necessary for a split switch, in railway construction, is an engineering proposition, to be determined by properly qualified engineers, and the verdict of a jury or the opinion of judges, cannot be substituted therefor.
Railway -- Negligence.
It having been shown that a throw of five inches was the standard adopted and recommended by the American Railway, Engineering, and Maintenance of Way Association, and that for all railroad purposes a throw of from four to five inches was safer than a less distance, held, respondent was not guilty of negligence in maintaining a split switch with a throw of four and three fourths inches, although a switchman's foot might be more readily caught therein than if the distance had been less.
Larrabee & Davies, for appellant.
Charles W. Bunn and Emerson Hadley, for respondent.
Appellant's son was a switchman in the employ of respondent railway company at its yards in the city of Minneapolis, and was killed on the track while engaged in the performance of his duties. Negligence is based upon the ground that respondent maintained a defective split switch, in that the movable point of the switch, when open, was at a greater distance than necessary, which condition permitted the foot of the switchman to become caught and held. Appellant recovered a verdict, and the trial court ordered judgment for respondent notwithstanding the verdict.
It was shown at the trial that the distance between the point of the switch, when open, and the main rail was four and three fourths inches, and appellant attempted to prove that three and one half inches was the extreme limit necessary. It being shown that the width of a switchman's shoe exceeds three and one half inches, it was claimed that the deceased could not have had his foot caught in the space, had the switch in question been maintained at a distance of three and one half inches. It was proven by respondent, and the fact was not controverted, that several years ago the American Railway Engineering, and Maintenance of Way Association adopted five inches as the standard throw of split switches, and that it has been the purpose of respondent...
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