Larson v. St. Paul, Minneapolis & Manitoba Railway Company
| Decision Date | 09 June 1890 |
| Citation | 45 N.W. 722,43 Minn. 423 |
| Parties | Martin Larson v. St. Paul, Minneapolis & Manitoba Railway Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Grant county, refusing a new trial after a trial before Holland J., and a dismissal ordered at the close of the evidence.
Order affirmed.
J. W Reynolds, for appellant.
M. D Grover, for respondent.
This is an action for the recovery of damages for a personal injury suffered by the plaintiff in the same accident which resulted in the action of Olson against this defendant, our decision in which is reported in 38 Minn. 117, (35 N.W. 866.) The facts of the case now before us are for the most part the same as those stated in the opinion above cited, and need not be here repeated; but some facts peculiar to this case will be referred to. The plaintiff was one of the section-men -- three in number, including the foreman -- who, in the discharge of their duty as the defendant's servants, were pushing the hand-car westward, during a westerly snowstorm, when they were overtaken by the engine and snow-plough coming from the east, and running "wild," that is, not on the schedule time of any train. The plaintiff's two companions were killed. After the evidence had all been presented the court dismissed the action. In this appeal from an order refusing a new trial, the principal question to be considered is whether upon the whole case it ought to have been submitted to the jury.
It may be taken as settled that it was the duty of the defendant to inform its section-men, unless they had already been advised of the fact, of its practice to run irregular trains without special notice to them. Olson v. St. Paul, M. & M. Ry. Co., supra. But it is also to be considered that if one in such employment had in any other manner learned of this practice, or if in the exercise of common intelligence and prudence in his employment he ought to have learned it, it would be presumed that he had acquired such knowledge, and had assumed that risk, or else, if he had not thus learned the fact, that he had been guilty of such negligence on his own part as should preclude a recovery. Olson v. St. Paul, M. & M. Ry. Co., supra. The testimony of the plaintiff went to show that he had not received actual notice of this practice, and it remains to be considered whether the case showed either that he had acquired knowledge of the fact by other means, or that he was chargeable with negligence if he had not done so, and whether this appeared so conclusively that the court was justified on that ground in refusing to submit the case to the jury. We are of the opinion that the dismissal of the action was justified upon this ground.
The plaintiff had been employed in this work but a week immediately preceding the accident, during which time he had lived with the section-foreman at a house on the line of the road. But more than two years before he had been for some three months in the same employment, on this same section of the road, and boarded at the same section-house. During that time about one-third of the trains over that section of the road were irregular or wild trains; and during the week of the plaintiff's employment, immediately preceding the accident, there were nine trains of that character. The plaintiff's constant employment was on and beside the track over which the trains were operated. He went over his section in a hand-car, on the track. The general nature of the danger to be apprehended from the passing trains was so obvious that it could not but have engaged the thoughts and attention of the plaintiff, or of any man in that employment. He knew that his very life depended upon looking out for and keeping out of the way of any trains...
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