Floody v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

• Decision Date: 10 December 1909
• Docket Number: 16,096 - (44)
• Citation: 123 N.W. 815,109 Minn. 228
• Parties: THOMAS F. FLOODY v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY and Another
• Court: Minnesota Supreme Court

123 N.W. 815

109 Minn. 228

THOMAS F. FLOODY v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY and Another

Nos. 16,096 - (44)

Supreme Court of Minnesota

December 10, 1909

Action against defendant railway company and Edward S. Wood in the district court for Ramsey county to recover $25,000 damages for personal injuries received while in the employ of that company. The complaint alleged, inter alia, that the defendant railway, by virtue of an agreement between those companies, ran its passenger trains over two railroad tracks owned by the Great Northern Railway Company, which were connected by a switch just outside of the Union Depot property, set out a detailed description of the puzzle switch mentioned in the opinion, alleged that defendant railway company provided defendant Wood to throw and lock said switch, and when it was in proper position to signal the train to come ahead over the switch; "that for a considerable time prior to the derailment mentioned, the said defendant Wood had been so throwing and handling said switch for said defendant at its special instance and request and with its acceptance, approval, and direction and as its servant and employee. That as originally constructed and as maintained and operated by the said defendant railway company at and during all the times herein mentioned and referred to the said switch was defective in that the rods and mechanism thereof were improperly adjusted and incorrect in dimensions and length, and by virtue thereof it was exceedingly difficult to throw and lock said switch. * * * That all these facts were at and during all of the times herein mentioned and referred to well known to the defendants and each of them, but notwithstanding such facts the said defendant railway company did carelessly and negligently continue to operate the said switch in said condition and run its trains over the same." That on the day of the accident "for the purpose of attending to the said switch and throwing it for the passage of said train the said defendant Wood, at the special instance and request as aforesaid of said defendant railway company and as its servant and employee and with its acceptance, acquiescence, and approval as aforesaid, was present at said switch to throw and lock the same. * * * That the defendants did at said time and place carelessly and negligently fail to throw and lock the said switch and levers for the said train to pass over the same as it was intending to do, but on the contrary carelessly and negligently caused and permitted the said switch and tumbler lever to be out of position for the passage of said train and unlocked, the said tumbler lever being up at an angle of about forty five degrees and did carelessly and negligently cause the said train to run upon the said switch, and the engines of said train were, by virtue of said switch not being properly thrown and locked derailed." The defendants in their separate answers denied the allegations of the complaint.

The case was tried before Orr, J., and a jury which returned a verdict for $8,500 in favor of plaintiff. From an order denying the motion of defendant company for judgment notwithstanding the verdict or for a new trial, it appealed. From an order denying defendant Wood's motion for judgment notwithstanding the verdict or for a new trial, he appealed. Affirmed.

SYLLABUS

Duty of Tenant Company Operating on Leased Tracks.

A railway company running its trains over the leased tracks of another company is not relieved of the duty it owes to its employees to use reasonable care to provide for the safe operation of its trains while upon such leased tracks.

Negligence of Union Depot Company.

A depot company, operating a union depot under the control and for the convenience of several railway companies, is the servant of the one for which it performs a particular act; and, if the act is negligently performed, the railway company is liable to its employee injured thereby.

Fellow Servant -- Liability of Tenant for Negligence of Landlord's Servant.

A switchman in the employ of a union depot company is not a fellow servant of a switchman in the employ of a railway company running trains to the depot, as the term "fellow servant" is used when the common-law rule is invoked that a master is not liable for injuries received through the negligence of a coemployee. Nevertheless the railway company may be liable to its servant for personal injuries received because of the negligence of the depot employee.

Fellow Servant.

The act of a switchman employed by the depot company in throwing a switch for the passage of a railway company's train is the act of the depot company, and may render the railway company liable to its injured employee. Floody v. Great Northern Ry. Co., 102 Minn. 81, followed.

Evidence of Negligence.

Evidence considered, and held sufficient to sustain a finding of negligence.

James B. Sheean and Thomas Wilson, for appellants.

Barton & Kay, for respondent.

OPINION

O'BRIEN, J.

This case, in one form or another, has been before this court several times. ^[2] The merits of plaintiff's claims were considered in Floody v. Great Northern Ry. Co., 102 Minn. 81, 112 N.W. 875, 1081, 13 L.R.A. (N.S.) 1196. In that case plaintiff had sued the Great Northern and Chicago, St. Paul, Minneapolis & Omaha Railway companies, and obtained a verdict against the Omaha; judgment being directed in favor of the Great Northern. A new trial of the action against the Omaha was directed by this court for errors of law and misconduct of a juror. Subsequently the district court vacated its order directing judgment in favor of the Great Northern. Plaintiff then served notice of dismissal, and commenced this action against the Omaha Company and Edward S. Wood, the switchman upon whose claimed negligence the plaintiff bases his right to recover. It is not necessary to mention other incidents, as no error because of any of them is assigned upon this appeal. This case came on for trial May 19, 1908, and the plaintiff had a verdict from the jury. The defendants appeal from an order denying an alternative motion for judgment or a new trial.

The appellant the Omaha Railway Company held a contract or lease from the Great Northern Railway Company giving it the right to use certain tracks belonging to the Great Northern in the city of St. Paul and adjoining the Union Depot grounds in that city. The original contract was entered into many years ago between the respective predecessors of these railway companies, and the evidence tends to establish the fact that the lease or contract has been liberally construed by the companies and understood to allow the Omaha the use to a greater or less extent of tracks belonging to the Great Northern which were not in existence at the time the contract was executed. Up to April 19, 1906, the Omaha Company had, under this contract, used for the passage of its trains to and from the Union Depot two certain tracks, the property of the Great Northern. These tracks met the Union Depot tracks at the center of Third street, at the boundary of the depot grounds. No switch was necessary at this point; the rails being connected and forming continuous tracks. The trains while upon the depot grounds were, as to switching, under the direction of the Depot Company.

The Union Depot Company is a corporation maintaining a depot for the benefit and convenience of the various railway companies entering the city. It has its own officers and employees, one of whom was the defendant Wood. On April 19, 1906, the Great Northern Company had completed upon its own right of way a track which entered the depot grounds about one thousand feet west of the point already described, where its tracks used by the Omaha Company connected with the depot tracks. It thereupon broke that connection, and placed what is known as a puzzle switch at the new point, and directed the Depot Company to send over this new track trains which had formerly left the depot grounds at the center of Third street. The evidence tends to establish the fact that the switch itself was upon the Great Northern property, but was operated by the employees of the Depot Company. The general superintendent of the Omaha Company testified he never knew of this change, nor was there any evidence that any one connected with that company, except its train employees, had actual knowledge of the situation. As its name implies, the puzzle switch is quite complicated. This particular one was difficult to operate, and, unless care was taken to firmly secure the lever, the rails were liable to be so placed as to cause the derailment of an engine or car entering the switch.

On the evening of May 9, 1906, the plaintiff, a switchman in the employ of the Omaha Company, was lawfully upon a switch engine attached to one of that company's passenger trains leaving the Union Depot for Minneapolis. Wood, the switchman in charge of the puzzle switch, threw the lever for the purpose of adjusting it so as to send the train upon the new track of the Great Northern Company, after which he signaled the train to advance, and the engine and forward trucks of the mail car were derailed at the switch. The plaintiff was thrown or jumped from the engine, was caught under the wheels of the tender, and permanently injured.

The plaintiff claims that the defendant Wood was negligent in failing to force home and secure the lever. The appellant railway contends that the plaintiff is not entitled to recover against it: (1) Because the accident occurred upon the property of the Great Northern Railway Company at a place not included within the terms of the contract between it and the Great Northern; (2) that the sending of the Omaha train over the switch described was...