Mase v. Northern Pac. R. Co.

• Decision Date: 21 August 1893
• Citation: 57 F. 283
• Parties: MASE v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — District of Minnesota

57 F. 283

MASE v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Minnesota, Third Division.

August 21, 1893

Erwin &amp Wellington, for plaintiff.

John C Bullitt, Jr., and T. R. Selmes, for defendant.

WILLIAMS District Judge.

This case is submitted upon the following agreed statement of facts:

'That the plaintiff is the duty-appointed and legally-qualified administratrix of the estate of Frank B. Mase, deceased and is the widow of said deceased; that, at all times hereinafter mentioned, plaintiff's intestate, Frank B. Mase, was in the employ of the defendant as an engineer on one of its passenger trains, and was, on the 3d day of October, 1890, engaged as such engineer upon the engine of a certain train, mentioned and referred to in the testimony hereto annexed as passenger train No. 2; that on said 3d day of October, 1890, while so engaged in the performance of his duties as such engineer upon said train, said Frank B. Mase was killed in an accident occurring at or near Butler, in the state of Montana, caused by said train on which plaintiff's intestate was so employed running upon a certain side track or safety track, by reason of a misplaced switch, and thus colliding with certain cars and a certain engine, mentioned as engine No. 483, which stood upon said side track or safety track; that said switch was so misplaced or left open by one E. L. Short, the conductor of the train mentioned as No. 58, of which said engine No. 483 was a part; that the circumstances of said accident are as stated in the testimony of Marshall Nixon, given at the coroner's inquest on the body of said Frank B. Mase, a copy of which is hereto attached, and made a part of this stipulation; that the trains referred to herein or in said testimony were trains owned or controlled by defendant in operating its lines of railway in said state of Montana and elsewhere, and that the persons engaged in and about said trains were in the employ of the defendant; that said accident was caused solely by the carelessness and negligence of said B. L. Short in permitting said switch to remain open and out of place, and said carelessness and negligence of said B. L. Short was the proximate cause of said accident and of the death of said Frank B. Mase; that said Frank B. Mase was free from all carelessness and negligence whatever in the premises.

'It is further agreed and stipulated that all the rules set forth in the complaint, and any and all of the rules contained in defendant's rule book, hereto attached, may be read and referred to by either party, in all proceedings that may be had in this case, with the same force and effect as though the same were fully set out herein, and the adoption and promulgation of said rules for the guidance of its employes is hereby admitted on behalf of the defendant; that the statutes of the state of Montana may be read and referred to by either party, in all proceedings that may be had in this case, from the printed copies thereof generally in use, without further proof of passage, and with full force and effect. It is further stipulated and agreed that, by reason of the matters herein set forth, the plaintiff, as the personal representative of said Frank B. Mase, deceased, has sustained damage in the sum of $4,000. Said B. L. Short had no control or direction whatever over said plaintiff's intestate, other than as given by the rules of the company. It is further stipulated and agreed that a jury is hereby waived in all proceedings that may be had herein in which either party would otherwise be entitled to a jury, and that the court may order judgment herein in accordance with the facts admitted by the pleadings, and herein stipulated, and the law of the land.'

Marshall Nixon, being duly sworn, says:

'I live at Missoula. I am a railroad brakeman. At the time of the accident, on October 3d, I was at Butler. I was braking for Conductor Short, on train No. 58, bound for Helena from Missoula. Our train broke in two in the tunnel. We tried to back her up, and couple her together again, but the train was too heavy for the engine, and we could not get it together. Then we came down to Butler with the front part of the train, and put her in on the side track, on the left of the main line coming down. I cut the engine off, and took it out on the main line, and Mr. Short said to back it up, and put it on the safety switch, and I did so, and closed the switch after me, and put the lock in the keeper of the switch. Then I went to the telegraph office after Mr. Short. I was there about twenty minutes, then Mr. Short came out, and I followed after him, and he says to me, 'Go down, and tell that engineer (meaning our engineer] to back out, and come down on the head end of the train.' And he said, 'I will let him out.' Then he (Mr. Short) went right across the track, and opened the switch, and he says to me, 'Fly down, and turn all the retainers down back of the furniture cars;' and I did so, and as I went down I told the engineer that Short wanted him to back up, and he said there was not room to clear down there. Then I holloaed, and told Short they could not clear down there. Short gave me a rough answer, and said for me to go and see. I went and seen, and did not think there was room there myself. Then I went back, and went into the office, and asked him what he was going to do. He said he was going to unload some stuff if we ever got out of there, and was kind of mad, and did not talk much after that. About that time he stepped out of the telegraph office, and the passenger train was coming down the hill, and Short said just as soon as I come on the platform, 'My God, that switch!' Just then No. 2 came past the platform, and ran into safety switch. There was Harry Cromwell's engine (engine No. 483) first and another engine and some cars on that track. I just threw down my brake club, and ran down to the wreck. I

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