Franklin v. Winona & St. Peter R. Co.
| Decision Date | 08 November 1887 |
| Citation | 37 Minn. 409 |
| Court | Minnesota Supreme Court |
| Parties | THOMAS J. FRANKLIN, Administrator, <I>vs.</I> WINONA & ST. PETER RAILROAD COMPANY. |
Gordon E. Cole, for appellant.
Geo. B. Edgerton and Kellogg & Eaton, for respondent.
The negligence charged against the defendant was leaving open and uncovered the spaces between the ties over a culvert, into which deceased, a brakeman on defendant's road, fell while making a coupling, and received injuries of which he died. The errors assigned and urged upon the argument may all be summed up in one, viz., that the evidence does not sustain the verdict, for the reasons (1) that no negligence on part of defendant was proved; (2) that it appears that the negligence of the deceased contributed to the injury complained of; but, if not, (3) that it was caused by the negligence of his fellow-servants who were engaged with him in operating the train.
The whole case, in our opinion, turns upon the first of these three propositions, which is the only one about which we have had any doubt. It appears from the evidence that from the station of St Charles eastward, on defendant's road, there is a steep up grade over which it is often difficult or impossible to draw heavy freight trains without dividing them, or what is called "doubling up." From the top of this up grade there is, going east, a sharp down grade of about 60 feet to the mile for a considerable distance. To get freight trains going east from St. Charles over this up grade by this "doubling-up" process, a spur siding was put in, the easterly end of which connected with the main track a short distance east of the top of the hill. This point of junction was, of course, on the down grade of the main track already referred to. The manner in which this "doubling up" had been uniformly done was to divide the train at St. Charles, and take the front part up over the hill and back it on to the spur siding, leave it there, and return with the engine to St. Charles, and bring up the rear part of the train over the hill until within a short distance of the east end of the spur, and leave it standing there in charge of the rear brakeman, while the engine would cut loose, run ahead and back in on the spur, and bring out the front part of the train upon the main track, when the rear part would be let down to it, and the coupling made by the head brakeman, who leaves his station and descends to the ground for that purpose. The evidence also shows that when in these operations the front part of the train is pulled out from the spur on to the main track, it "usually" runs down, before coming to a stop, so that the hind end of it would be from two to six car-lengths (a car-length is about 32 feet) from the east end of the spur, and is liable sometimes to go still further, depending on the condition of the rails and brakes, as the brakes may not hold the cars well, and they may get a "big start" on this down grade. There is no direct evidence tending to show whether or not it is necessary or good management to let the front part of the train down so far from the switch before bringing it to a stop. The evidence also tends to show that when the rear part is let down upon the front part, it usually shoves the latter forward "one or more car-lengths." It also appears that it is not infrequent for the brakeman to fail to make the coupling on the first attempt, in which case it is necessary for the engineer to "slack ahead," and for the rear brakeman again to let down the rear part of the train, when the head brakeman would again attempt to make the coupling. The evidence shows that this mode of making a coupling is hazardous, and that it would be much safer to make it by backing the front part of the train to the rear part; but that with heavy trains it was often difficult and even impossible to back up so steep a grade, and that the couplings had always been made at this place in the way first described, and that the company had never issued any rules upon the subject.
About 305 feet east of the east end of the spur track was the uncovered or open culvert already referred to. Two of the freight conductors of defendant testified that there is no occasion or necessity for getting down as far as the culvert in coupling the train after doubling the hill. This is not contradicted by any direct or positive evidence, but the witnesses gave no reason for their opinion, except the fact that they had doubled the hill a great many times, and never got down as far as the culvert, except on one occasion, when both brakemen got off the train without the knowledge of the conductor, and it "got away from them."
On the occasion when the deceased was killed, he was...
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