Jambor v. Great Northern Ry. Co.
| Citation | 161 Minn. 195,201 N.W. 321 |
| Decision Date | 12 December 1924 |
| Docket Number | No. 24158.,24158. |
| Parties | JAMBOR v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Wright County; Albert Johnson, Judge.
Action by Stanislaus Jambor, as administrator of Joseph Wiench, deceased, against the Great Northern Railway Company. From an order denying motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed.
A. L. James, of St. Paul, and Hoke, Krause & Faegre, of Minneapolis, for appellant.
Samuel Anderson, of St. Paul, for respondent.
Appeal from an order denying defendant's motion for judgment notwithstanding the verdict or a new trial. The action is under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and its purpose to recover damages for the death of Joseph Wiench, who, while the foreman of a section crew employed by defendant in interstate commerce, came to his death by reason of the derailment of a motorized section car.
At the time of the accident the deceased and the other members of his crew, Libor and Klick, were on their car traveling over defendant's line between Delano and Montrose in Wright county. The car was of the usual type, the motor being inclosed by a box-like covering over the middle of the car from front to rear. The box was wide and high enough to furnish a convenient seat for the three men on the car at the time of the accident. The platform extended something like eight inches beyond the sides of the box. There were cleats, approximately two inches square, bolted at the outside edges of the platform on the front, sides and rear, except that the one for the front end at the right of the motor cover was missing.
The car was proceeding from Montrose to Delano, and when it was derailed possibly was being driven too fast, well over 15 miles an hour perhaps, in order to get to a cross-road where it could be set off out of the way of a passenger train coming not far behind. Libor and the deceased were sitting on the box facing to the left, Libor being in control of the engine and Wiench himself having no particular care at the time except to look out for trains. He was the section boss and in complete charge of the crew and car. Klick sat alone on the right side of the car facing in that direction. Under his feet, in the tray-like receptacle formed by the platform as a bottom and the box and cleats already mentioned as sides and one end, were an adz, a track gauge, and a clawbar. They were under Klick's feet. It was on this side that the cleat was missing from the front of the car body or platform. Apparently on account of the vibration, the clawbar worked forward far enough so that it tipped over the front end, was thrown under the car, and derailed it, Wiench being fatally injured.
The one issue for our consideration is that of the alleged negligence of Klick, a fellow servant of the deceased. Unless Klick owed a duty to the deceased to take care that the tools under his feet did not fall off as the clawbar did fall off, a violation of which...
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