Jacobson v. CHICAGO, M., ST. P. & PR CO.

• Decision Date: 26 July 1933
• Docket Number: No. 9544.,9544.
• Citation: 66 F.2d 688
• Parties: JACOBSON v. CHICAGO, M., ST. P. & P. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 688 (1933)

JACOBSON v. CHICAGO, M., ST. P. & P. R. CO.

No. 9544.

Circuit Court of Appeals, Eighth Circuit.

July 26, 1933.

Edward J. Callahan, of Minneapolis, Minn. (Smith, Callahan & Carlson, of Minneapolis, Minn., on the brief), for appellant.

A. C. Erdall, of Minneapolis, Minn. (F. W. Root and C. O. Newcomb, both of Minneapolis, Minn., and C. S. Jefferson, of Chicago, Ill., on the brief), for appellee.

Before KENYON and GARDNER, Circuit Judges, and DEWEY, District Judge.

GARDNER, Circuit Judge.

Appellant, as plaintiff below, brought this action to recover damages for personal injuries suffered by him as the result of being struck by a snowplow which was being operated by appellee at the head end of a locomotive. For convenience the parties will be referred to as they appeared below.

At the close of all the evidence, defendant interposed a motion that the case be dismissed on the merits, or, in the alternative, that the court direct a verdict in its favor on the ground that plaintiff had failed to show any actionable negligence on the part of defendant. This motion was granted by the court, and a judgment of dismissal on the merits was accordingly entered, and this action of the court is the controlling issue on this appeal.

The evidence, resolving all conflicts in favor of plaintiff, shows substantially the following facts:

Plaintiff was an experienced section laborer, having been employed in that capacity by defendant for a period of some twelve years prior to the accident. For three years prior to the accident he was employed on the Winnifred branch line on which there was operated a scheduled mixed freight and passenger train on Mondays, Wednesdays, and Fridays. The section foreman called the dispatcher every morning to find out if there would be an extra train on that day, and whether or not it was late.

On the day before the accident, the foreman, with the knowledge of plaintiff, went to Lewistown, and was not in the performance of his usual duties on the day of the accident. But on the previous day he told plaintiff that there would be no trains on the following day (the day of the accident). While this is disputed by the section foreman, yet, for the purposes of a motion for directed verdict, the testimony of plaintiff must be accepted as true.

It appears from the evidence that the dispatcher seldom knew about what extra trains would be operated the following day, because extra trains are sometimes called out on very short notice, and, when snowplows return to the terminals, they are sometimes sent out on the lines as soon as a crew is available.

On February 28, 1929, plaintiff went out on this Winnifred branch line to do certain track work. He cleaned the three crossings from Moulton to Christina, and, as he was walking west from crossing No. 3 toward crossing No. 4, on the right side of the track looking for broken rails, at a point two or three hundred feet west of crossing No. 3, he was struck by a train coming from behind, traveling in the same direction as he was, and made up of a gondola car, on the front end of which was bolted a wedge snowplow, and this car, being loaded down with gravel as ballast, was fastened to the head of the engine by an automatic coupler and chains, which were wired, so that they could not become unhooked. At the rear of the locomotive was a caboose, and at the rear end of the caboose was a flanger car, which is a box car with an apparatus under the center of the car which can be raised and lowered to clean out the inside of the rails. Plaintiff testified that he did not hear any whistle blown nor bell rung. There was a strong wind blowing and some snow drifting, and the snowplow encountered drifts of snow so that snow was thrown up in front of the engine and caboose. From 3 to 5 feet of snow was piled up on top of the gondola car and covered to a considerable degree the windows of the engine and caboose, so that the train men were unaware that they had struck plaintiff until the train had passed him.

Plaintiff was aware that the defendant ran snowplows over the track when there were snowdrifts on the track, and two days before the accident he and the section foreman ran into a drift of snow and ice, which was about 2 feet deep, at a point about one-half mile west of Moulton. On the day of the accident, and on the preceding day, the wind was blowing and the snow drifting, and on the day before the accident the scheduled train was stuck for an hour and thirty-five minutes in the snow about 5½ miles north or west of Christina. The section foreman took this belated train to Lewistown.

From August 7, 1928, to February 28, 1929, there were sixteen extra trains operated over this branch line on Tuesdays, Thursdays, and Saturdays, and plaintiff worked eight hours on each of these days. Extra trains in midwinter were mostly snowplow trains, and their running depended upon the weather. Defendant's rule 18, with which plaintiff was familiar, provided: "When a line up of train movements is obtained it must not be considered final because operating conditions may require running of additional trains."

Plaintiff had been instructed to keep a lookout for trains.

After the section foreman arrived in Lewistown, and about midnight of February 27th, he learned that there might be a snowplow run over the Winnifred line the following day. He did not attempt to warn plaintiff, who was then at Christina, Mont., which was the headquarters of both the section foreman and plaintiff. Christina consisted of a store, post office, elevator, and a small railroad station. There was a one-way telephone, by means of which one could call the dispatcher from Christina, but the dispatcher could not call Christina because there was no bell on the telephone at Christina. There was no agent in the depot at Christina, and plaintiff lived at the time in a bunkhouse located about 800 feet south of the depot. There was no telephone in the bunkhouse, nor was there any telephone in the section house.

At the time of the accident, plaintiff was walking on the right side of the track, facing a strong wind. At crossings Nos. 1 and 3 there were only four planks, or a plank on each side of the rail of the track. At crossings Nos. 2, 4, and 5 there were six planks, and the space between the rails was covered by two planks, and one plank was placed on the outside of each rail. There were whistling posts for the public crossings. Crossings Nos. 2, 4, and 5 were public crossings, while crossings Nos. 1 and 3 were farm crossings. At crossings 1 and 3 there were no highway crossing signs and no whistling posts, except the flanger whistling posts. Crossing No. 3 is located on a sharp curve. Between Moulton and the curve the track ran northeast, and beyond or north of the curve the track ran northwest. Plaintiff had cleaned out crossings Nos. 2 and 3 before the accident. A farmer and his son living between crossings Nos. 2 and 3 testified that they heard the train whistle for both crossings 2 and 3; that the train looked like a snowball; that the snow was flying around it, and it was plastered all over with snow. The train crew testified that the crossing whistles were all regularly given, and that the engine bell was rung automatically, and that it was ringing at the time of the accident, having been turned on before reaching Moulton and not turned off until after the accident occurred. The flanger, which was being operated on the train at the time of the accident, must be raised at all planked crossings, or otherwise it would tear up the crossings and probably cause a wreck. The flanger whistle signal was given at crossings 2 and 3, and the flanger raised for those crossings, and no damage was done thereto.

There was a snowdrift about 200 feet in length on the curve just before the train reached crossing No. 3, and the drift extended onto that crossing, and this snowdrift was encountered as the train went around this curve and passed the crossing. No one on the train saw Jacobson before he was struck. Plaintiff was wearing a sheep-lined coat, with a collar which extended to the top of his ears. He was wearing a cap which could be pulled down over his ears. When he was picked up after the accident, his coat was buttoned up and the collar turned up over his ears, and he was unconscious, having suffered a serious fracture of the skull and a fracture of both bones of the right leg. Plaintiff claims that his coat collar was not turned up over his ears at the time of the accident, but that after he was struck he turned his coat collar up over his ears.

Defendant's rule 103 provides: "When cars are pushed by an engine, except when shifting or making up trains in yards, a trainman must take a conspicuous position on the front of the leading car."

Another rule of defendant provides that the highway crossing whistle signal should be sounded at obscure places on irregular and delayed trains.

The liability of the defendant must be determined under the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59). Under that act negligence is the basis of liability, and there can be no recovery in the absence of common-law negligence on the part of the railroad company, or some of its employees. Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Missouri Pacific R. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351; Nelson v. Southern R. Co., 246 U. S. 253, 38 S. Ct. 233, 62 L. Ed. 699; Chicago & N. W. R. Co. v. Bower, 241 U. S. 470, 36 S. Ct. 624, 60 L. Ed. 1107; Southern R. Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

Accepting this rule as determining his right to recover, plaintiff on this appeal contends that the evidence was such as to entitle him to go to the jury upon an issue of negligence raised (1) by the testimony...