Lawson v. Truesdale
| Decision Date | 28 March 1895 |
| Docket Number | 9227 |
| Citation | 62 N.W. 546,60 Minn. 410 |
| Parties | C. F. LAWSON v. W. H. TRUESDALE, Receiver |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by C. F. Lawson against W. H. Truesdale, receiver of Minneapolis & St. Louis Railway Company, to recover damages for personal injuries. The jury rendered a verdict in favor of plaintiff for $ 7,150. The court, Smith, J., made an order granting defendant's motion for a new trial unless plaintiff should consent to a judgment for $ 5,000, to which plaintiff consented. From this order defendant appealed. Affirmed.
Order affirmed.
Albert E. Clarke and Wilbur F. Booth, for appellant.
The risks resulting from snow and ice are risks of employment. Henkes v. City of Minneapolis, 42 Minn. 530, 44 N.W 1026; Wright v. City of St. Cloud, 54 Minn. 94, 55 N.W. 819; Blais v. Minneapolis & St. L. Ry. Co., 34 Minn. 57, 24 N.W. 558; Stacey v. Winona & St. P. R Co., 42 Minn. 158, 43 N.W. 905; Piquegno v. Chicago & G. T. Ry. Co., 52 Mich. 40, 17 N.W. 232; Dowell v Burlington, C. R. & N. R. Co., 62 Iowa 629, 17 N.W. 901; Brown v. Chicago, R. I. & P. Ry. Co., 64 Iowa 652 21 N.W. 193. The existence of the ice was not the proximate cause of the injury. Chicago, St. P., M. & O. Ry. Co. v. Elliott, 5 C. C. A. 347, 55 F. 949. Proof that work is done in the customary way is of itself proof that it was not negligent. Flanders v. Chicago, St. P., M. & O. Ry. Co., 51 Minn. 193, 53 N.W. 544. Plaintiff was guilty of contributory negligence in attempting to get on the car. Roul v. East Tennessee, V. & G. Ry. Co., 85 Ga. 197, 11 S.E. 558; Novock v. Michigan Cent. R. Co., 63 Mich. 121, 29 N.W. 525; Cunningham v. Chicago, M. & St. P. R. Co., 5 McCrary, 465, 17 F. 882, and 12 Am. & E. R. Cas. 217; Dowell v. Vicksburg Ry. Co., 61 Miss. 519. Where there is a safe and a dangerous way to perform a service, failure by an employe to adopt the safe one, even if other servants do likewise, is negligence. Pierce, R. R. 377, 378; Chicago & N.W. R. Co. v. Bliss, 6 Brad. 411; Chicago & A. R. Co. v. Rush, 84 Ill. 571. The fact that it was the custom to do so makes no difference. Andrews v. Birmingham Mineral R. Co., 99 Ala. 438, 12 So. 433; Kroy v. Chicago, R. I. & P. R. Co., 32 Iowa 357; Thompson v. Boston & M. R. Co., 153 Mass. 391, 26 N.E. 1070; Larson v. Ring, 43 Minn. 88, 44 N.W. 1078. To recover, the servant must show that he did not know of the defect, and had not equal means of knowing with the master. Texas & P. Ry. Co. v. Rogers, 13 U. S. App. 547, 6 C. C. A. 403, 57 F. 378; 3 Wood, Ry. Law, § 386. A servant assumes obvious risks. 3 Wood, Ry. Law, p. 1747, § 379; Ragon v. Toledo, A. A. & N. M. Ry. Co., 97 Mich. 265, 56 N.W. 612; Batterson v. Chicago & G. T. Ry. Co., 49 Mich. 184, 13 N.W. 508. That defendant did not know the ice was there is no excuse, as means of knowledge is evidence of knowledge. McKee v. Chicago, R. I. & P. Ry. Co., 83 Iowa 616, 50 N.W. 209.
Larrabee & Gammons, for respondent.
This is a personal injury case, in which plaintiff had a verdict. The appeal is from an order denying defendant's motion for a new trial, and the only exception taken during the proceedings, so far as appears from the record, was that of defendant to the refusal of the court below to instruct the jury to return a verdict in its favor.
There was little controversy over the facts. Plaintiff was an experienced switchman in defendant's employ, and had worked for more than two months in what was known as the "middle yard" at Minneapolis. The "lead" track in this yard ran northerly and southerly, and on its westerly side were several side tracks, branching off and running in a northerly direction from the lead. There was a slight ascent on all of these side tracks, so that a car placed upon either had to have its wheels blocked or its brakes set, to prevent its return down grade towards the lead. The switch stands for these side tracks stood 67 feet apart on the opposite or easterly side of the lead track, were numbered, going northerly, from one upward, and surmounting the top of each switch rod was the usual iron target, distant about two feet from a passing freight car. It was plaintiff's duty to "catch" the cars as they were pushed or "kicked" by a locomotive onto these side tracks, to stop them at the proper points, either to block the wheels or set the brakes, and if necessary, to couple them on to other cars. He was the only man in the yard who did this particular work, and was usually busily employed. All of the switching to the side tracks in the yard was necessarily from a southerly direction, and from the evidence it appeared that it was customary and proper for all men engaged in this kind of work to catch the car while in motion, and ride to the place where it was to be left, and that in this particular yard it was customary and proper for plaintiff and others to take station on the easterly side of the lead track, where they could see the switch target, the switch being turned by another man, indicating the track to be used, and, of necessity, southerly from it, and there catch the coming car by first stepping on a truck oil box, and thence to the lower round of the side ladder of the car, sometimes riding in this position, and at other times taking place at the brakes on top of the car, thus riding to the point of destination, where, as before stated, they were required either to block the wheels or to set the brakes. When the car going upon the side track was the first to go there, -- and that was the case with the car which plaintiff tried to catch when injured, -- the imperative rule in this yard was to set the brakes.
On the afternoon in question, in the winter season, plaintiff walked across the side tracks, from the point where he had been with other cars, to the easterly side of the lead, there to catch a car which was to be kicked onto side track numbered 14. He took position opposite track numbered 11, about 200 feet southerly of track 14. The car came along quite rapidly, the speed being estimated at 8 miles or more per hour. The plaintiff seized a round of the ladder with his hands, and was about to spring upon the oil box of the car truck, when he slipped or stumbled, as he claimed, on a pile of ice and snow in dangerous proximity to the track, and lost his footing. Holding on with his hands, he was thrown against the side of the car, and almost instantly struck a switch target, which knocked him to the ground, inflicting the injuries complained of.
The negligence of the defendant relied on was that it allowed this pile of snow and ice to remain in close and dangerous proximity to the lead track; along which it was necessary for the plaintiff to walk rapidly, or to run, in order to board the cars as they came up to him from the locomotive. There was evidence which would have justified the jury in finding that snow, or ice, or both, had been removed from the tracks, and from about the switch stands, and thrown into a pile within what may be called the "switch line," not over two feet from a passing car, and there allowed to remain for a few days prior to the accident; that the pile, paralleling the track, was from 15 to 18 inches high, about 2 feet wide, and from 7 to 10 feet long, and that, the night before plaintiff was injured, it had been thinly covered with fresh snow, which had fallen or been blown upon it; that the plaintiff had not noticed it, and as he hastily stepped or ran along the side of the car, that he might spring up and board it in the usual and customary way, he slipped or stumbled on the pile, the slipping or stumbling being the proximate cause of his injuries.
It is claimed by counsel for appellant that the language used in Henkes v. City of Minneapolis, 42 Minn. 530, 44 N.W 1026, and Wright v. City...
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