M'Donald v. Chicago, St. P. M. & O. Ry. Co.

• Decision Date: 02 October 1889
• Parties: WILLIAM McDONALD <I>vs.</I> CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 439

41 Minn. 439

WILLIAM McDONALDvs.

CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.

Supreme Court of Minnesota.

October 2, 1889.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial after a verdict of $6,000 for plaintiff.

J. H. Howe, C. D. O'Brien, and S. L. Perrin, for appellant.

I. V. D. Heard and John D. O'Brien, for respondent.

VANDERBURGH, J.

The principal questions in this case arise on defendant's exceptions to the ruling of the court in refusing to dismiss the action upon the plaintiff's evidence, and in refusing to direct a verdict upon the whole evidence in the case. The other exceptions which were taken to the admission of testimony in the case do not require any consideration, as we think the legal questions thereby presented are not doubtful or important. The discussion is therefore practically narrowed down to the question whether the decision of the trial court affirming that the verdict is supported by the evidence is sustained by the record. Plaintiff suffered the injury complained of while in defendant's employ in assisting to turn an engine on its turn-table in East St. Paul, on the 3d day of April, 1887. He was one of several employes engaged under the direction of a foreman, whose duty it was to care for the engines in the roundhouse, and to turn the incoming or outgoing engines upon the turn-table as required. He had been so employed about three months. The evidence on material points is conflicting, but there is evidence in the case reasonably tending to prove that the turn-table, which had been in use for about seven years, was defective or inadequate and unsuitable for the use to which it was subjected; that it was too small for the class of large engines then in use; that it was raised too high in the centre, so that it was not easily kept balanced, but "tipped" or canted over to one side; that the wheels upon which it turned in the pit were much worn, and sometimes did not touch the rails; and that it was ordinarily moved with great difficulty by prying or "pinching" with iron bars placed under the wheels, so that it was a long and laborious task to turn it, when, if it had been suitable for the purpose and in good order, it could have been readily turned with levers in a few minutes. The evidence also tends to show that at the time he commenced work, and while he was there, it was the practice to call to their assistance other engines, as opportunity might offer, to aid in turning the table. The track ran close to the table, and a stick about eight feet long and four inches in diameter, prepared and kept for the purpose, was so adjusted between the engine upon the track and that upon the table as to enable the former to push the latter along on the curve a considerable distance, or till beyond reach. This mode of turning the table sufficiently appears to have been with the authority and sanction of the foreman, and was frequently resorted to while the plaintiff was there. He testifies that the foreman ordered it whenever there was a chance to get an engine for the purpose, and another witness, the engineer upon the switch-engine that assisted in turning the table when the accident occurred, testifies that the foreman had asked him to assist in the same way two months before, and that it was the practice "off and on" all winter. Notice to the defendant of the condition of the table would be presumed after a reasonable time. On the day in question the switch-engine was passing down the track nearest the table, distant about 14 inches. Another engine had been backed out upon the turn-table, to be turned around and sent out upon the road. It was a large engine, and the tank extended beyond the table, so that the switch-engine could not pass. Thereupon the "stick" was called for, and the plaintiff and another of the employes procured it and adjusted it between the two engines in the usual way, as plaintiff testifies. Steam was thereupon applied, the turn-table moved a few feet and then "tipped," and the engine thereon ran back upon the curb, the wheels caught, and the stick broke. The two engines were suddenly brought together, and plaintiff's arm crushed between the tenders. Whether the case should have been taken from the jury involved the question of defenda...