Gibson v. Chi. Great W. R. Co.

• Decision Date: 09 February 1912
• Citation: 134 N.W. 516,117 Minn. 143
• Parties: GIBSON v. CHICAGO GREAT WESTERN R. CO.
• Court: Minnesota Supreme Court

117 Minn. 143

134 N.W. 516

GIBSON

v.CHICAGO GREAT WESTERN R. CO.

Supreme Court of Minnesota.

Feb. 9, 1912.

Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.

Action by Gawen W. Gibson against the Chicago Great Western Railroad Company. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Plaintiff's foot was caught and held in the space between the planking and a rail of defendant's tracks at a street crossing, and was run over by an engine. It is held, whether defendant should have filled or blocked the space underneath the ball of the rail was not primarily a problem in engineering for the solution of defendant's officers and engineers; but whether defendant was negligent in this respect was, on the evidence, a question of fact for the jury.

Whether the engineer, in charge of the engine that ran over plaintiff, used reasonable care to stop his engine after discovering that plaintiff's foot was caught, was a question for the jury, and the evidence was sufficient to sustain the verdict on this point.

There was no prejudicial error in the rulings on the trial.

The damages are not excessive.

Briggs, Thygeson & Everall, for appellant.

Samuel A. Anderson and A. F. Storey, for respondent.

BUNN, J.

Plaintiff was the conductor of a freight train of defendant that reached Dyersville, Iowa, during the morning of December 6, 1910, and stopped at the water tank, just east of a street crossing, which was less than a block east of the station. His engine was out of repair, and it became necessary to move it to a side track west of the station. When this was done, another engine was to move the train from the main track to a side track, where it was to remain until the first engine was repaired. Plaintiff watched to see that his engine was put away properly, and in so doing walked back and forth between the water tank and the station. As he was walking east on the main track at the street crossing in company with the trainmaster, he knew that engine 600 was coming from the west to couple to his train. The trainmaster called to him to ‘Look out for that engine!’ Plaintiff turned, saw that the engine was approaching, and took a step to get off the track, when his right foot went down in the space between the planking and the north rail, and was caught and held there. The trainmaster gave the engine a stop signal. Plaintiff made every effort to extricate his foot, but was unable to do so. The trainmaster pulled him to one side, and his foot was run over by the pony truck wheels of the engine. The injury resulted in an amputation between the knee and the ankle.

This action was to recover damages for the injuries so received. The charges of negligence were substantially these: (1) The crossing was unsafe, in that the space between the rail and the planking was such that the foot of any passer-by or a person walking along the track would be likely to step into the space and underneath the ball of the rail, and there be caught and held. (2) The engineer on the engine that ran over plaintiff failed to use reasonable care to avoid the accident after knowledge that plaintiff was caught. The trial court submitted these issues to the jury, which found a verdict in favor of plaintiff in the sum of $12,500. Defendant moved for judgment notwithstanding the verdict or for a new trial, and appealed from an order denying such motion.

[1] 1. Defendant's first contention is that it was not for the jury to decide whether defendant was negligent in leaving the space between the plank and the rail unfilled, for the reason that this was purely an engineering problem. The crossing was at grade, and over the principal street of Dyersville, a city or village of a population of over 3,000. The tops of the rails were practically on a level with the planking on both sides. The space between the ball of the rail and the plank was 2 1/2 inches. All of the space underneath the ball of the rail was open, there being no blocking or finlling of any kind. There was evidence from experts as to a custom of filling or blocking these spaces, as well as expert evidence of a contrary custom. The trial court held that no negligence could be found from the width of the space, but left it to the jury to say whether ordinary care required defendant to fill in or block the space underneath. It is quite plain to us that the situation constituted a danger both to employés and to persons crossing the tracks, and that the evidence made a case for the jury, unless we sustain defendant's point that this was purely a problem in engineering. There is no doubt that railroad companies must consider the safety of passengers and those riding on their trains, as well as the safety of employés working upon the tracks or of people crossing them; and if it fairly appeared that filling or blocking the spaces between rails and planking at street crossings was dangerous to passengers or employés riding on trains, it would be right to say that it is for the officers and engineers of the railway company to determine the safest course, basing their decision on their judgment and past experience.

This doctrine has been applied to a curve in a track (Tuttle v. Detroit, G. H. & N. Ry., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114), to blocking frogs (Gilbert v. Burlington, C. R. & N. R. Co., 128 Fed. 529, 63 C. C. A. 27), and to various other conditions. In Dodge v. Northern Pacific Ry. Co., 107 Minn. 242, 119 N. W. 1066,26 L. R. A. (N. S.) 600, the question was as to what throw was necessary for a split switch, and this court decided that the question was not to be determined from the...