Floody v. Great N. Ry. Co.

• Decision Date: 19 July 1907
• Citation: 102 Minn. 81,112 N.W. 875
• Parties: FLOODY v. GREAT NORTHERN RY. CO. et al.
• Court: Minnesota Supreme Court

102 Minn. 81

112 N.W. 875

FLOODY

v.GREAT NORTHERN RY. CO. et al.^*

Supreme Court of Minnesota.

July 19, 1907.

Appeal from District Court, Ramsey County; Oscar Hallam, Judge.

Action by Thomas F. Floody against the Great Northern Railway Company and another. Verdict for plaintiff. From an order denying a new trial, defendant Chicago, St. Paul, Minneapolis & Omaha Railway Company appeals. Reversed, and new trial granted.

Syllabus by the Court

A railroad company is liable to its servants for the negligence of the employés of a union depot company, whose duty it is to operate the switches and direct the movement of the trains out of the depot yards. For the occasion, the servants of the depot company become the servants of the railroad company.

A switchman, who in the performance of his duty is required to ride on his engine while assisting in pulling a train out of the depot yards, is entitled to recover from his master, the railroad company, for injuries received by reason of the negligence of the depot company servants in operating a switch.

New trial granted upon the ground that certain instructions were misleading and for misconduct of a juror.

James B. Sheean (Thomas Wilson, of counsel), for appellant.

M. L. Countryman, for respondent Great Northern Ry. Co.

Humphrey Barton, for respondent Floody.

LEWIS, J.

The complaint alleges that plaintiff was a switchman in the employ of defendant the Chicago, St. Paul, Minneapolis & Omaha Railway Company; that defendant the Great Northern Railway Company owned, maintained, and operated railroad tracks running into the Union Depot of the city of St. Paul, over which, by agreement, the Omaha Company operated its passenger trains into the Union Depot; that in connection with its tracks and as a part thereof the Great Northern maintained and operated a certain switch over which it operated its passenger trains, and over which the Omaha also operated its trains; that May 9, 1906, and for some time prior thereto, the Great Northern, for the use of itself and the Omaha Company, in the operation of their trains, took charge of the switch for the purpose of operating the same; that while plaintiff was riding on a train of the Omaha Company the Great Northern Company carelessly and negligently failed to properly operate the switch, and the Omaha Company carelessly and negligently attempted to operate its train over the switch, and as a result of the defective condition of the switch the train was derailed and the plaintiff injured. The Omaha Company admitted that it operated its trains into the Union Depot over the tracks of the Great Northern, pursuant to an agreement to that effect, and that the Great Northern Company owned and operated the switches and tracks. The Great Northern Company denied that it operated the switch, but admitted that it operated its trains into the Union Depot over the tracks in question. At the close of plaintiff's case defendants rested without introducing any evidence, and on motion the court directed a verdict for the Great Northern Company, at which time counsel for the Omaha Company stated to the court: ‘I also understand that, in sending this case to the jury, all consideration of the defective condition of that switch will be excluded.’ Counsel for plaintiff then moved the court to instruct the jury that the only question of fact for the jury to consider was the amount of damages that plaintiff was entitled to recover. The motion was overruled, whereupon the court charged the jury, and a verdict was returned for plaintiff in the sum of $15,000, and the Omaha Company moved for judgment notwithstanding the verdict and for a new trial. The court denied the motion for judgment notwithstanding, but granted a new trial, unless plaintiff should consent to a reduction of the verdict to $10,000, to which plaintiff consented, and the Omaha Company appealed from the order.

It was shown at the trial that the Union Depot Company, a corporation, owned the Union Depot and certain yards and terminal facilities, with engines and railway tracks; that seven different railway companies used the terminal facilities and the depot under and by virtue of certain contracts entered into with that company; that the Union Depot Company had in its employ a crew of switchmen, whose business it was to take charge of incoming and outgoing trains, to operate the switches, and to give the proper signals. The two defendants in this action were entitled to the use of the depot and yard facilities; but the Great Northern Company owned a right of way of its own, and at the time of the accident had constructed and was maintaining two tracks thereon, both of which the Omaha Company had the use of for the purpose of running in and out of the depot. About April 20, 1906, the Great Northern Company took out an old switch and constructed a new one in its place-being the one where the accident occurred-connecting tracks Nos. 1 and 2, over which the passenger trains of the Great Northern Company and its lessee companies were diverted to and upon tracks 1 and 2 and over the new switch. The evidence shows that the old switch was operated exclusively by the Union Depot Company switchmen, and on the occasion of the accident, May 9th, and during the time from the 20th of April, the new switch continued to be operated by the employés of that company. Plaintiff was in the employ of the Omaha Company as a switchman, and it was his duty to ride down with his switch engine to the depot and assist in pulling the trains of that company out of the depot yards. The engine was in charge of an engineer and fireman, but in the exercise of his duties plaintiff was rightfully in the cabin of the engine. For some reason the switch in question was already open, or opened by the vibration of the approaching train, and as a result the engine was derailed and tipped over, and plaintiff was caught under it and injured.

At the trial it was shown by the testimony of several of the switchmen in the employ of the Union Depot Company that the switch in question was not easily operated, for the reason that one of the iron rods, or arms, was too long, and, when the arm was thrown from one side to the other, it did not go down far enough to permit the dog to catch and retain it, so that the operator had to bear his weight on the arm, or jump on it, in order to press it down into place. One witness also testified that the dog, or catch, did not always go into place and hold the arm securely. So far as defendant the Great Northern Company is concerned, the court was correct in ordering judgment in its favor, provided the evidence did not show that it had been negligent in constructing and maintaining a defective switch. The trial court seemed to have the impression that the switch...