Guthrie v. Great N. Ry. Co.
| Decision Date | 17 May 1899 |
| Citation | 76 Minn. 277,79 N.W. 107 |
| Parties | GUTHRIE v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Stearns county; D. B. Searle, Judge.
Action by Julia Guthrie, administratrix of Archie Guthrie, against the Great Northern Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.
In an action to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of defendant's engineer, held, that the evidence was conclusive that the deceased himself was guilty of contributory negligence; also that there was no evidence that the engineer was guilty of wanton or willful negligence in failing to exercise reasonable care to avoid injury after he discovered that the deceased was in a place of danger. Geo. H. Reynolds and Wm. R. Begg, for appellant.
Calhoun & Bennett, for respondent.
The deceased was a brakeman on a freight train of the defendant runing between Hinckley and St. Cloud, on what is known as the ‘Hinckley Branch.’ One Gallager was engineer on the same train. This train made the round trip every day except Sunday. Both the deceased and Gallager had been running on it sufficiently long to become familiar with the route. At the station of Bridgman there was a spur called the ‘Mill Track,’ upon which the trainmen had frequent occasion to go for the purpose of putting in or bringing out freight cars. The evidence will be better understood by reference to the map attached to the paper book. On the day in question the trainment had occasion to go in on the spur track to bring out some loaded cars. At station O this track divides into two branches, and the cars in question stood on the westerly branch, at a point variously estimated by the witnesses from 150 to 240 feet beyond the point marked ‘Crossing,’ where the deceased was struck, as hereinafter stated. The engine and tender were backed in onto the mill track, Gallager acting as engineer, the deceased riding on the gangway of the engine. Another brakeman was ‘on the hind end of the tank,’ but where the engineer could not see him. When they approached the switch (station O), the engine was stopped or ‘slowed up,’ and the deceased got down from the engine, and ran ahead, and threw the switch, signaled the engineer to ‘back up,’ and then started up the track on a run, for the purpose of coupling the cars when the engine and tender reached them. There is a conflict in the evidence as to whether, between the switch and the crossing (a distance of about 150 feet), the deceased ran between the rails, or along and outside of them, on the westerly side of the track. The engineer and one of the bystanders testified that he ran outside the rails (although the bystander was not at all certain), while another bystander testified that he ran between the rails. Between the switch and the crossing it would have been difficult to walk outside the rails, because there was no ‘shoulder’ to the roadbed, but from the crossing northward it was practicable to walk or run outside the rails far enough to avoid danger from the passing tender or engine. The tender, being considerably wider than the track, projected on each side quite a number of inches beyond the rail. Upon receiving from the deceased the signal to back up, the engineer started back, and by the time the crossing was reached the engine had attained a speed of seven or eight miles an hour. One witness, who was a locomotive engineer, testified that, in his opinion, the usual and customary rate of speed in backing down, under the circumstances existing in this case, would be not over three or four miles an hour, but there was no evidence as to the usual rate of speed at which this or any other train had been accustomed to back down on this spur. While the engineer was backing up in response to the signal of the deceased, he was looking out of the westerly cab window back in the direction in which he was moving, watching the deceased, and continued to do so until after the latter reached the crossing. This he admits was his duty, under such circumstances, for the double purpose of protecting the brakeman and of watching for signals from him to guide his movements. The bell was rung continuously while the engine was being backed up to the time of the accident.
We come now to the evidence as to what occurred at the immediate time when the accident happened. The engineer testified that the deceased ran up to where some men were standing quite close together, at or near the crossing, and stopped and spoke to them. Here we will use his own language: ...
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