Fry v. Great N. Ry. Co.
| Decision Date | 02 June 1905 |
| Citation | 95 Minn. 87,103 N.W. 733 |
| Parties | FRY v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.
Action by Solomon D. Fry against the Great Northern Railway Company. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding the verdict or for new trial, defendant appeals. Modified.
1. The duty of a railroad company to exercise ordinary care in the inspection and keeping in repair of an engine for use by a fireman extends to a step between his seat and the deck of the cab, used to get up to and down from the fireman's seat. Held: (1) That the facts here justified the jury in finding the defendant guilty of negligence in respect to such duty. (2) That the fireman did not, as a matter of law, assume the risk involved, so as to prevent recovery for damage suffered.
2. Held, also, that a verdict greater than $3,500 for injuries proven in this case is excessive. M. L. Countryman, for appellant.
Dodge, McElwee & Dodge, for respondent.
The plaintiff and respondent, a locomotive fireman of seven years' experience, on the morning of November 14, 1903, before daylight, got onto the cab of an engine. He had never fired this particular engine before, but was familiar with engines of its class. The outgoing trip was made with safety; but while returning at about 3 p. m. of the same day, while the engine was in motion, he fell or slipped while getting down from his seat on the left-hand side of the cab, and struck his right side against an iron step which he had used in descending. Thereby he suffered the injuries complained of. He had used the step a number of times when the engine was standing still. The light upon it was obscured. The plaintiff only introduced testimony as to circumstances of the injury; both parties produced expert testimony as to their extent. The jury returned a verdict for $5,000. Defendant appealed from an order denying the alternative motion for judgment notwithstanding the verdict or for a new trial.
1. The first question involved in the determination of this case is whether or not the defendant was guilty of actionable negligence. The step in question was fastened by two bolts to the inside of the cab, about 2 or 2 1/2 feet above the floor or deck of the cab, and about the same distance down from the fireman's seat. Its function was to assist the fireman in getting up on and down from his seat. The normal condition of the step was at right angles to the side of the cab (known as the ‘wind sheet’). While there was some uncertainty as to the cause of the slanting, the testimony showed conclusively that it bent down from an inch to two inches from a right angle. The step in question was offered in evidence in the trial court, and was produced before this court. Its surface, on which the foot of the fireman would rest, was worn smooth, and its edge rounded by use. It is obvious that any considerable departure from right angles rendered the step dangerous. Defendant's counsel says that at an incline of two inches ‘only an acrobat could use the step with confidence.’ The roundhouse foreman, ‘whose duties are to watch the engines and see that everything was going right,’ inspected it, tested it, and fell from it both before and after the plaintiff was injured. To improve its condition, he notched the surface with a cold chisel. Two other firemen, in October and November of the same year, slipped from the same step in substantially the same way. The court charged the jury that it was the defendant's duty to exercise ordinary care to inspect and keep the step in repair, and that the failure on the part of defendant to perform its duty in either of these particulars would constitute negligence. We are of the opinion that the duty of inspection resting on defendant extended to such an appliance as this step, and that this was a proper and relevant instruction. Construed as a whole, the charge of the court to the jury correctly set forth the rules of law applicable to the facts....
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