Maehren v. Great Northern Railway Company
| Decision Date | 22 June 1906 |
| Docket Number | 14,846 - (133) |
| Citation | 107 N.W. 951,98 Minn. 375 |
| Parties | CASPAR MAEHREN v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Stearns county to recover $7,600 for personal injuries. The case was tried before Searle, J and a jury, which rendered a verdict in favor of plaintiff for $5,000. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and new trial granted.
Master and Servant -- Inconsistent Orders.
Action to recover for personal injuries sustained by a locomotive engineer by a rear end collision between two freight trains of the defendant. Defense that the plaintiff was guilty of contributory negligence in not complying with a rule requiring all trains to approach all stations and water tanks under control. Held, if compliance by the servant with a general rule is rendered impossible by other and inconsistent orders and duties imposed by the master, negligence cannot be imputed to the servant for not following the general rule.
Contributory Negligence.
If the plaintiff had his train under control as he approached the station, or if he did not, if he used due care and, under the circumstances of the case, did all that it was reasonably possible for him to do, consistent with other rules and duties, if any, imposed upon him by the defendant, to comply with the rule as to having his train under control, he would not be guilty of contributory negligence, otherwise he would be.
Instruction to Jury.
It was error for the trial court to instruct the jury to the effect that if the plaintiff exercised the care and diligence to keep his train under control ordinarily exercised by engineers under like circumstances he was not guilty of contributory negligence.
Question for Jury.
The evidence in this case was sufficient to take the case to the jury upon the question of the alleged contributory negligence of the plaintiff in not complying with the rule.
M. L Countryman and Geo. H. Reynolds, for appellant.
Donohue & Stephens and Calhoun & Bennett, for respondent.
Action to recover damages for personal injuries sustained by the plaintiff by a rear-end collision between two freight trains of the defendant at Osakis, this state, on September 27, 1904. Verdict for the plaintiff for $5,000. The defendant appealed from an order denying its alternative motion for judgment or for a new trial.
That the plaintiff was injured to some extent by the collision, and that it was caused by the negligence of the defendant's servants in charge of the head train, is not controverted.
1. It is, however, the contention of the defendant that the evidence establishes the contributory negligence of the plaintiff as a matter of law, in that he violated rule 53 of the defendant which provided that:
All trains must approach all stations and water tanks between stations under control, and so proceed until the track is plainly seen to be clear. The responsibility for a collision at a station, or at a water tank between stations, will rest with the following or incoming train. This will not relieve train and enginemen from responsibility of protecting trains at stations and water tanks as provided by rules 49 and 57.
That is, by sending a flagman back a sufficient distance to warn other trains by the use of flags, torpedoes, or other signals.
Evidence was offered on the trial tending to establish the following facts: That the plaintiff was a locomotive engineer, and on September 27, 1904, at 2:25 o'clock a.m. he left Barnesville for Melrose, this state, in charge of a livestock train of twenty eight cars. The time schedule of his train to Evansville, and of a similar train preceding his own, was delivered to him. These particular trains had the right of way over all trains, except passenger trains, from Barnesville to Evansville, a distance of fifty six miles. The plaintiff reached Evansville one-half hour behind schedule time. Here he received an order fixing his time schedule to Melrose, the end of his run, with an admonition from the defendant's superintendent to the effect that he did not make good time to Evansville, and to try and reach Melrose on time. No time schedule of the head train from Evansville to Melrose was given to him. He also had an order directing him to run not exceeding ten to twelve miles between switches at Osakis. He reached a point one and three quarters miles west of Osakis at 5:58 o'clock a.m. The morning was dark and foggy, and his rails slippery. At a point one and a half miles west of Osakies he shut off steam applied the brakes and reduced the speed of the train to sixteen or eighteen miles an hour, and at a point one-half mile west of Osakis the speed was reduced to eight or ten miles an hour. It was downgrade and he sat looking ahead with his hand on the brake which was set. The speed was eight to ten miles an hour. The head train was delayed by a hot box, and stopped seventy five feet west of the first switch without sending back a man to warn, by flags, torpedoes, or other signals, other trains, as was the duty of those in charge of the head train. The collision occurred seventy five feet west of the first switch, not between the switches. The water tank was some nine hundred feet east of that point. The plaintiff at the rate he was running could have stopped his train in four hundred feet, but, owing to the fog, he could not see that distance. When he saw the caboose of the head train on the track it was too late to avoid the collision, and he let go of the brake, pulled the whistle rope, jumped off his engine, and was injured. He testified to the effect...
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