Dwyer v. N. Pac. Ry. Co.

• Decision Date: 24 December 1908
• Citation: 106 Minn. 281,118 N.W. 1020
• Parties: DWYER v. NORTHERN PAC. RY. CO. et al.
• Court: Minnesota Supreme Court

106 Minn. 281

118 N.W. 1020

DWYER

v.NORTHERN PAC. RY. CO. et al.

Supreme Court of Minnesota.

Dec. 24, 1908.

Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

Action by Maurice Dwyer against the Northern Pacific Railway Company and others. Verdict for plaintiff. From an order denying a new trial, defendant railway company appeals. Affirmed.

Syllabus by the Court

The rules of appellant railway company provided: ‘All trains must approach terminals, the ends of double tracks, junctions, railroad crossings at grade, and drawbridges prepared to stop, and must not proceed until switches or signals are seen to be right or the tracks seen to be clear.’ Held, this rule does not by its terms require an engineer, in charge of a switch engine upon a cross-over track, to stop his engine in the clear of a main track until the switch light has been turned. He may rely upon other signals and upon his observation. Respondent was not conclusively guilty of contributory negligence in obeying the lantern signal of the head switchman to advance toward the switch on the main outgoing track without waiting for the switch light to be turned. C. W. Bunn and Washburn, Bailey & Mitchell, for appellant.

Samuel A. Anderson, for respondent.

LEWIS, J.

Appellant railway company owned and operated two certain railway tracks into and out of the city of Duluth, running parallel and about eight feet apart, known as the ‘incoming’ and ‘outgoing’ main tracks. The switchyard of the company is located on the southerly side of the tracks, at Twentieth Avenue West, and a cross-over track connects the yard with the main tracks. Respondent was a locomotive engineer, and at the time of the accident was in charge of a switch engine. His crew consisted of himself, the switch foreman, Banack, the head switchman, Guyer, and the following switchman, Robertson. On the 15th of December, 1906, at about 6:30 p. m., when about to cross the main tracks with his engine, respondent stopped in the clear of the incoming track for the purpose of having the switches lined up. The switch foreman boarded the engine at that point and took a position at the left-hand side of the cab. Rebertson threw the switches on the incoming main track, and Guyer went on towards the switch on the outgoing main track, and as he went along, but before he had reached the switch, he gave the lantern signal to the engineer to proceed, and at the same time the foreman told him to go ahead. He thereupon proceeded slowly, keeping a lookout, and had crossed the incoming track and was moving his engine onto the outgoing main track, when the light from the yard depot at Twentieth avenue shone on the end of the box car of an outgoing freight, whereupon he immediately reversed his engine and did what he could to prevent a collision, but it was too late, and the car struck his engine. Such was the testimony of respondent.

The distance from the point where the engineer received the switchman's lantern signal to advance to the point of the accident was between 200 and 300 feet. Each switch stand had a lantern with two faces, one red and the other green. When the switches were lined up for the main tracks the green light showed along the main lines and the red light along the cross-over track, and when the switches were thrown connecting the switch track with the main lines the red light showed along the main lines and the green light along the switch track. There is no controversy about the switches on the incoming track....