Iltis v. Chi., M. & St. P. Ry. Co.
| Decision Date | 19 March 1889 |
| Citation | 41 N.W. 1040,40 Minn. 273 |
| Parties | ILTIS v CHICAGO, M. & ST. P. RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. The evidence in this action, brought against a railway company to recover damages for causing, through negligence, the death of plaintiff's intestate, examined, and held to justify a verdict for said plaintiff.
2. Certain alleged errors, concerning the refusal of the trail court to permit an amendment to the answer; in regard to its refusal to submit for the consideration of the jurors, and for them to pass upon, specific findings of fact, as requested by defendant, and various rulings upon the admission or exclusion of evidence, considered and disposed of.
Appeal from district court, Carver county; EDSON, Judge.
Action by Frederick Iltis, administrator of one Happ, deceased, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the death of plaintiff's intestate, alleged to have resulted from the negligence of defendant. Verdict and judgment for plaintiff, and defendant appeals.
W. H. Norris, for appellant.
W. C. Odell and H. J. Peck, for respondent.
The plaintiff, as administrator of the estate of one Happ, brought this action against defendant railway company, to recover damages for causing, through negligence, the death of his intestate, in the month of June, 1886, and secured a verdict in the court below. From an order denying a new trial, defendant appeals.
The appellant's main line of road runs through the village of Chaska, easterly and westerly, and about 300 feet south of the brick-yard of Riedele & Sons, in which Happ had worked as a common laborer some two years when killed. A spur track, used solely for Riedele & Sons, extends from the east side of their brick-yard along in front of the kilns, across Pine street near its intersection with Sixth and thence obliquely over and across Sixth to the main line. The general course of this spur or side track is southwesterly, and it is nearly 500 feet in length. Between the yard and the main line is another spur, known as the “Bierline side track;” the switch thereof being some 300 feet south of the kilns. More or less switching was done in the forenoon of each secular day in this vicinity by a locomotive and crew of men who came for that purpose from another station, the men being well acquainted with the work. The switching done upon the Riedele track consisted in first taking out loaded cars,-usually six or seven in number,-and then putting in empties, and cars filled with wood for use in making brick. This was done almost daily, and these cars were usually left, coupled together, east of the plank crossing upon Pine street, and near the kilns. Occasionally a part would be left between the plank crossings on Pine and Sixth, in the streets. As the empties were needed for loading, or as the wood could be unloaded during the day, laborers from the yard would uncouple a car, and by hand easily push it down grade to the desired point opposite the kilns. This practice was well known to the switching crew, as was shown by the testimony. And it was also well established upon the trial that it was the invariable custom of the train-men to make up the cars destined for the brick-yard side track out on the main line and Bierline spur, in the exact order indicated by a “switching list” prepared by the station agent, or under his supervision, and then set them in in such order. In other words, it was the rule to put the cars for the yard in a certain order elsewhere, and then, by one trip of the locomotive upon the side track, place them, coupled together where they would remain until moved by the laborers,-Happ being one of the men who habitually helped in the moving. This long established practice was not observed upon the day of the accident. Seven cars,-three filled with wood,-had been set apart for the brick-yard switch, and a list furnished the conductor. The seven had been placed in the designated order upon the Bierline spur, (the wood cars being the fourth, fifth, and sixth from the locomotive, which was attached at the west end of the string,) when a transposition was ordered, so as to place a car of wood nearest the kilns.
The appellant claims that this order was given, just as the train was moving, by one of the proprietors of the yard, who happened to board the third car from the locomotive, about this time. This is denied by the person so charged, although he admits having so directed the station agent, earlier in the day. We fail to see that discussion over this point is of any consequence to appellant, for it is immaterial who caused the shifting of the cars, if thereby negligence resulted, and deceased, without contributing to such negligence, lost his life. In order to put the wood first upon the side track the train was pulled off from the Bierline spur, and westerly along the main line to within a few rods of the brick-yard switch, when it was uncoupled between the fourth and fifth cars, both of which were loaded. This left three empties, and one box car filled with wood, attached to the engine, while one empty and two loaded remained on the main line. The four cars attached to the locomotive,-the one filled with wood now in the front,-were then pushed easterly alone the side track in the direction of the kilns until they cleared the planking at the Pine-Street crossing, when the engine returned to the main line for the balance of the train. It is obvious that immediately after this Happ and two other laborers from the yard came to the west end of the car of wood, and commenced to push it along further east. While so doing, and before they had gone many feet, the locomotive returned with the three cars, pushed them along until they struck those previously placed on the side track, throwing all forward with sufficient force, and in such a violent manner, that the deceased was caught and crushed (as he was pushing the wood car) so seriously as to cause his death the next day.
Twenty-three errors are assigned by appellant, and these may be condensed into five, for consideration in this opinion. First, error in refusing to allow an amendment to the answer; second, in excluding certain testimony offered by appellant; third, in refusing to submit specific questions for the jurors to answer, with their general verdict; fourth, in giving certain instructions to the jury; fifth, in holding that the evidence justified the verdict.
The answer admitted, we think, although this was not unreservedly conceded by appellant's counsel upon the trial, that Happ's death directly resulted from the accident. The amendment, which was not proposed until the second day of the trial, withdrew this admission, and asserted that the accident was but a remote cause of the death. The application to amend is always addressed to, and must largely rest in, the discretion of the court. There was no abuse of discretion in the refusal to permit the amendment asked. It follows that many...
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