Mahutga v. Minneapolis, St. P. & S. S. M. Ry. Co.
| Decision Date | 16 January 1931 |
| Docket Number | No. 28253.,28253. |
| Court | Minnesota Supreme Court |
| Parties | MAHUTGA v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. |
Appeal from District Court, Wright County; Ciddings, Judge.
Action by Frank A. Mahutga against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Samuel A. Anderson, of St. Paul, for appellant.
John E. Palmer, of Minneapolis, and Henry Spindler, of Buffalo, for respondent.
The appeal is from a judgment entered pursuant to defendant's motion for judgment upon the pleadings and upon the opening statement of plaintiff's counsel.
The action, which is to recover for personal injuries while a head brakeman in defendant's employment, is based upon an alleged violation of the Boiler Inspection Act, as amended, and brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). Plaintiff was injured while his train was engaged in interstate transportation. It was December, and side cab curtains were being used. It was plaintiff's duty to catch a No. 19 order (an order for which stop is not necessary) which was fastened to a hoop held up by the agent from a station platform. The train was traveling about twenty miles per hour. The curtain was closed. In opening the curtain to perform this duty and in attempting to receive the order he fell and was injured.
Plaintiff's claim of negligence is that the curtain was so arranged in fact as to interfere with the free and unobstructed use of the handhold, and that plaintiff was thereby exposed to unnecessary hazard and consequent injury. The allegations of the complaint and the very concise and frank opening statements of counsel to the jury in substance are as follows: That, when plaintiff undertook to open the curtain for the purpose indicated, it was drawn forward on the rings on the rod above, and that the wind blew the curtain shut again, that plaintiff had to draw it forward two or three times that he threw it forward so as to clear the grab iron in front of and on the outside of the curtain, and, as he reached for this grabiron, the wind forced the curtain back against his hand, so that the curtain struck his hand, deflecting it, so that he missed the grabiron on the engine, lost his balance, fell to the platform of the station, and was injured. On the back edge of this curtain, the edge next to the tank, i. e., when the curtain is closed, the edge of the curtain had a wooden strip extending up and down for the purpose of stiffening it, to keep it from flapping in the wind. The claim is that this wooden strip struck plaintiff's hand so that he missed the grabiron. The claim of negligence is that the carrier had this curtain so hung that it was unsafe, in this, that the curtain could not be fastened back, fastened open while the work plaintiff was engaged in was being done, and that the carrier was negligent in not having proper loops or fasteners or some kind of a tie-back on this curtain whereby it could be fastened open at the time the work was being done.
Defendant's motion was upon the theory that, if all the allegations of the complaint and the contents of counsel's opening statement to the jury, which was made a matter of record, perhaps for the purpose of the motion, were true, the same would not constitute a cause of action.
1. At the time when the motion was made, plaintiff's counsel disclaimed common-law negligence, and stood upon a violation of the Federal Boiler Act. It was agreed that the decision and order of the Interstate Commerce Commission hereinafter mentioned and the photographs now in the record be considered by the court in passing upon the motion which was granted. The procedure is not novel, but is rarely and sparingly invoked in practice. It, of course, should not be adopted unless counsel has deliberately stated his facts as he hopes to prove them. If he has so stated his case and is afforded an opportunity to explain and qualify his statements so far as the truth will permit, it is proper for the trial court to act upon the facts so asserted by the pleadings and the opening statement. Barrett v. M. St. P. & S. S. M. Ry. Co., 106 Minn. 51, 117 N. W. 1047, 18 L. R. A. (N. S.) 416, 130 Am. St. Rep. 585, and St. Paul Motor Vehicle Co. v. Johnston, 127 Minn. 443, 149 N. W. 667. The practice, where applicable, is commendable, in that it saves time and expense.
2. The Boiler Inspection Act was adopted February 17, 1911, c. 103, § 2, 36 Stat. 913, as amended March 4, 1915, c. 169, 38 Stat. 1192, and June 7, 1924, c. 355, 43 Stat. 659, 45 USCA p. 79, § 23, conferred upon the Interstate Commerce Commission the exclusive power to specify the sort of equipment to be used on locomotives. It was given authority to standardize such equipment. Napier v. A. C. L. R. Co., Chicago & N. W. Ry. Co. v. R. R. Commission of Wis., Chicago, Mil. & St. P. Ry. Co. v. R. R. Comm. of Wis., 272 U. S. 605, 47 S. Ct. 207, 71 L. Ed. 432.
3. The Interstate Commerce Commission in Re R. R. Com. of Wis. v. Aberdeen & Rock Fish Ry. Co. et al., No. 19299, on May 7, 1928, rendered a decision wherein it approved the wide locomotive side curtain known as the Wisconsin curtain, which is the kind and type here involved. It was said that the curtain was to be applied and maintained so as to not interfere with the free and unobstructed use of the handholds; the handholds on the tender being offset for this purpose. The handhold herein involved was so offset. Following the decision, the Commission on May 7, 1928, made its order effective November 1, 1928, in the form of an amendment to rule 116 of the rules and regulations for the inspection and testing of steam locomotives and tenders approved and established in accordance with the act of ...
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