English v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 11 September 1885
• Citation: 24 F. 906
• Parties: ENGLISH v. CHICAGO, M. & ST. P. RY. CO. [1]
• Court: U.S. District Court — District of Minnesota

24 F. 906

ENGLISH v. CHICAGO, M. & ST. P. RY. CO. ^[1]

United States Circuit Court, D. Minnesota.

September 11, 1885

Thomas Wilson, for plaintiff.

W. Gale and Bigelow, Flandrau & Squires, for defendant.

BREWER J.

This case was tried before Judge NELSON and a jury, and a motion is made for a new trial, and was argued before both Judge NELSON and myself. I always have a little hesitation in hearing a motion for a new trial of a case which has been tried before some other judge, for the reason that I think no one but the trial judge can really fully understand the merits of the case as developed by the witnesses. He has an opportunity which no other judge can have to determine whether upon the whole case substantial justice has been done, and the mere testimony in the record, when read, does not make the impression that testimony falling from the lips of living and present witnesses does; and if Judge NELSON and myself had not agreed in the conclusion which he asked me to announce, I should have hesitated a good deal about passing an opinion on this case; but after talking the case over, and reading the testimony as transcribed by the stenographer, and also in the light of his personal recollection, we have come to the following conclusion, which I am requested to announce:

Briefly the facts are these: The intestate, Mr. English, was employed as a car-repairer by the defendant. On the day of the accident he was sent by his foreman, Mr. Goodman, to go to a water-tank and repair it. That water-tank stood upon standards 11 or 12 feet in height. At the summit of these standards, and at the base of the tank, there was a deck octagonal in shape, encircling the bottom of the tank sloping slightly from the tank, so that water would pass off. There was some little dispute as to the amount of deflection, perhaps three-fourths of an inch to one and one-half inches to the foot. The deck was in the narrowest place about 21 inches wide, and at the octagonal points a little wider than that,-- about 30 inches. The work to be done required the workman to go outside the tank and let the water off, and then get inside and fix a valve, which was done by replacing a bolt and screwing on a nut. The water was taken out of the tank by four holes, closed by plugs,-- two on each side. They were reached by walking around on this narrow deck.

There is a dispute in the evidence as to whether the deceased, Mr English, was employed to do that work. It is very evident from the testimony this was not within the ordinary work of a car-repairer. There is testimony that when Mr. Goodman, the foreman, first employed intestate it was with the understanding that this was part of the work he had to do. But as the jury, by their verdict, seem to have found against that testimony, that may be laid outside of the case, and it must be assumed that this has not part of his business, and that he was sent by that foreman to do a work outside his regular business, and one of danger. You can easily understand that where there is a little deck or shelf along the base of a water-tank, sloping outwards, in the narrowest place 21 inches, and in the widest place two feet five or six inches, with no railing round the body of the tank to hold on by, and with nothing to support a man in case he lost his balance, at any time of the year it would have been a proceeding of some risk to walk round on that shelf and drive these plugs in, and a work of especial risk in the winter-time, for this was in December, when a man might expect that there would be ice or snow on this sloping deck, which, of course, made it the more dangerous. If a man slipped there has nothing for him to hold on to. I do not think it needs any words to show that such a tank so circumstanced, with such a deck upon which to work, without any means of support or protection, was a dangerous place. And when the company called upon the deceased to go onto that place and fix that tank, it sent him into a position of danger. As the testimony shows, the deceased and a man by the name of McCarty were notified, in the morning, to go and make these repairs as soon as a certain train passed at 11:50. They went, knocked the plugs out so as to let the water flow out of the tank, and then went to dinner, and the water flowed out while they were gone. After dinner they went back. First they went inside and fixed the valve; then one of them went one side of the tank to put in two plugs, and the other on the other side to put in the two other plugs. There was ice on the deck where the deceased went, and he...