McCabe v. Montana Cent. Ry. Co.

Decision Date06 May 1904
CourtMontana Supreme Court

Commissioners' Opinion. Appeal from District Court, Cascade County; J. B Leslie, Judge.

Action by Joseph D. McCabe against the Montana Central Railway Company. From a judgment of nonsuit, and from an order denying a new trial, plaintiff appeals. Reversed.

Frank D. Larrabee and Downing & Stephenson, for appellant.

L Parker Veazey, for respondent.


Appeal from a judgment of nonsuit and from and order denying plaintiff's motion for a new trial.

The plaintiff brought this action to recover damages for injuries sustained by him in defendant's railway yards in Great Falls, caused, as he alleges, by defendant's negligence in constructing and maintaining a switch stand so near its railway track that plaintiff, in the performance of duty, was struck thereby as he attempted to mount a moving engine, and falling thereunder, was run over, resulting in the loss of his left leg a few inches above the knee. A somewhat extended statement of the existing conditions seems to be necessary. In the north end of the freight yard, where the accident occurred, the tracks run northerly and southerly. The easterly one is called the "house track." Adjacent to the house track on the west is the lead track, which is somewhat in the form of an are of a circle. Other tracks connect with the lead track at the northerly and southerly portions thereof, and each in appearance, taken in conjunction with the lead track, is not unlike the string to a bow. The first track west of the lead track is called "No. 7," the next west "No. 6," and so on, there being seven of these connecting tracks. Where each of the tracks connects with the lead track at the northerly end there is a switch stand, which is numbered to correspond with the connecting track. Thus the northerly switch stand is No. 1, and the next to it is No. 2. The distance between No. 1 and No. 2 is 185 feet. The seven switch stands are similar, and are the same distance from the lead track, but plaintiff testified that he did not know this until after the accident. On the top of each is what the witnesses call a "target," and this is surmounted by two prongs, upon which lights are placed at night. It is 45 inches from the center of switch stand No. 2 to the easterly rail of the lead track when the target is parallel with the track; but when the switch is turned so that cars may pass from the lead track to track No. 2 the target, is at a right angle with the tracks, and it is then but 40 inches from the target to the easterly rail of the lead track. At the time the measurements were taken, which was a day or two prior to the trial, the distances between the switch stands and the track were the same as they had been for the two years immediately preceding, and this would include the time in which plaintiff worked for the defendant in the year 1899.

The testimony discloses that the steps on an engine similar to the one in use at the time of the accident project over the track a distance of 30 inches, and the space between the engine and the switch stand, the target being as a right angle with the track, when the engine is backing in on track, when the engine is backing in on track No. 2, is about 10 inches. Prior to the accident, which occurred December 13, 1899, plaintiff had been in defendant's employ as head brakeman on a freight train for nearly three months. About a year before he had been in defendant's employ for a few months, serving as helper in the boiler shop, hostler's helper, and fireman on a switch engine; but in none of these capacities did he ever do any switching in that portion of the yard where he was afterwards injured. While in the discharge of his duties as brakeman, plaintiff became familiar with the railroad yards at Havre, Helena, Clancy, Belt Mine, Sand Coulee, and Neihart. In all of these places he did considerable switching, and in all of those yards he had ridden on the sides of engines and cars past the switch stands, and was never interfered with by the switch stands nor targets thereon in any way. Throughout defendant's entire system, save in the northerly portion of the Great Falls yards, it appears that the switch stands are about six feet from the track. There are eighteen switches in the Great Falls yards and all are about six feet from the track, save the seven mentioned. Plaintiff testified that he did not know until after the accident that the seven were any closer to the track than are the others on the system. Plaintiff testified that he had never done any switching in the north end of the Great Falls yards prior to the morning in question. While plaintiff was in the employment of the defendant as head brakeman, the train started from different places in the yards. In coming into the yard plaintiff never had to throw any switches, but did throw switches in different parts of the yard upon going out. It was his duty to couple the engine and tender on every train that was taken and tender on every train that was taken out on which he worked as brakeman, but there were exceptions to that rule.

The defendant pleaded that the plaintiff was guilty of contributory negligence, and that he had assumed the risk of the employment. In order to determine whether the plaintiff was guilty of such contributory negligence as will defeat his action it becomes necessary to look to the situation of the defendant and plaintiff--the master and servant--at the time of the accident. On the afternoon of the day on which plaintiff was hurt he was summoned to take out a train. Going to the yards he found the train he was to take out standing on track No.2. No engine was as yet attached. Engine No. 500, which had been assigned to the train, was on track No. 1. Another engine, by mistake, had been let in on track No. 2. Plaintiff went to switch stand No. 2,and threw it to let the engine on that track come to the lead track, so that engine No.500 could move to track No. 2. This was the only occasion upon which he ever threw switch No. 2. He then went to switch stand No. 1, and threw that to allow engine No. 500 to go from track No. 1 to the lead track, which it immediately did. In the meantime the conductor had again thrown switch No. 2 to allow this engine, No. 500, to go to the train standing on track No. 2. It was then standing about 30 feet north of switch No. 1. Plaintiff started to walk to switch No. 2. At one place in the testimony plaintiff says he walked toward switch No. 2 with the intention of turning it. On cross-examination he testified that he could have safely discharged his duty and have ridden to the train made up on track No. 2 by getting onto the engine near switch No. 1, and said that he walked towards switch No. 2 leisurely until the engine caught up with him; that there was no purpose in doing so except to put in the time while the engine was going along. When about 20 feet from switch stand No. 2, the engine, traveling about 5 or 6 miles an hour, caught up with him, and he then mounted it by getting upon the steps, but before he had fully straightened up his body came in contact with the prongs and target upon switch stand No. 2. He was knocked from the engine, which ran over his left leg. The witnesses testified that it is customary for employés in a railway yard to mount an engine when it is not going faster than six miles an hour.

One ground urged by defendant's counsel in his motion for a nonsuit is: "Because it appears from the plaintiff's proof that the duties which he was seeking to perform at the time of the accident complained of could have been performed safely and without injury or danger to him, but he voluntarily and unnecessarily chose a dangerous method of performing these duties, and unnecessarily placed himself in a position of known peril, thereby negligently contributing to the injury for which he now seeks damages from the defendant." In his brief counsel urges this position with great force, and cites the following authorities in his support: Cummings v. H. & L. S. & R. Co., 26 Mont 434, 68 P. 852; 1 Bailey's Personal Injuries, § 1121; Highland Ave. & D. R. Co. v. Walters (Ala.) 8 South. 360; Central Ry, of Ga. v. Mosley (Ga.) 38 S.E. 350; Morris v. Duluth, S. S. & A. Ry. Co., 108 F. 747, 47 C. C. A. 661; Chicago & Northwestern Ry. Co. v. Davis, 53 F. 61, 3 C. C. A. 429; Richmond & D. R. Co. v. Bivins (Ala.) 15 So. 515; George v. Mobile & O. R. Co. (Ala.) 19 So. 784; Davis v. Western Ry. of Ala. (Ala.) 18 So. 173; Ferguson v. Chicago, M. & St. P. Ry. Co. (Iowa) 69 N.W. 1026; Union Pacific Ry. Co. v. Estes (Kan.) 16 P. 131; Carrier v. Union Pacific Ry. Co. (Kan.) 59 P. 1075; Quirault v. Alabama G. R. R. Co. (Ga.) 36 S.E. 599; Fritz v. Salt Lake & O. G. & E. L. Co. (Utah) 56 P. 90; Jenkins v. Cotton Mills (La.) 25 So. 645. There can be no question as to the correctness of the legal proposition upon which counsel relies, but is it applicable to the facts in this case? That the duties plaintiff was seeking to perform could have been performed safely and without injury to him is conceded, but did he voluntarily or unnecessarily place himself in a position of known peril? Did he know, or ought he to have known, that the way he adopted was unsafe? Did he know, or ought he to have known, that the switch stand was but 40 inches from the track? The testimony discloses that the switch stands at all other places upon defendant's system were about six feet from the track, and plaintiff had frequently ridden past them without injury on the sides of cars and engines. It is the duty of the employer to use all reasonable care to provide a safe place in which the employé may perform his service (Kelley v. Fourth of July M. Co., 16 Mont. 484, 41 P. 273); that...

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