McCann v. Minneapolis & St. L. R. Co.

• Decision Date: 11 April 1924
• Docket Number: No. 23736.,23736.
• Citation: 159 Minn. 70,198 N.W. 300
• Parties: McCANN v. MINNEAPOLIS & ST. L. R. CO. et al.
• Court: Minnesota Supreme Court

159 Minn. 70

198 N.W. 300

McCANN

v.MINNEAPOLIS & ST. L. R. CO. et al.

No. 23736.

Supreme Court of Minnesota.

April 11, 1924

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by James Arthur McCann as special administrator of the estate of Henry Lewis La Bell, deceased, against the Minneapolis & St. Louis Railroad Company and the Great Northern Railway Company. From an order denying its motion for judgment notwithstanding or a new trial, defendant last named appeals. Reversed with directions.

Syllabus by the Court

Plaintiff's decedent, a member of a switching crew in the appellant's switchyards at Minneapolis, in transmitting signals from the foreman to the engineer pulling a string of cars from a spur onto the lead, took a position between the rails of a spur track in the Minneapolis & St. Louis switchyards paralleling appellant's lead, and while so engaged in his work a switching crew of the Minneapolis & St. Louis road shunted cars in upon the spur, and the decedent was run down and killed. In this action against both railroads there was a verdict in favor of the Minneapolis & St. Louis road. It is held:

No actionable negligence was proven against appellant on account of the location of its own tracks, or the clearance between its lead and the tracks of the other defendant, or in any other respect.

The risk which caused decedent's death was fully known and appreciated by him, and hence was assumed. Hoke, Krause & Faegre, of Minneapolis, for appellant.

Olof L. Bruce, of Minneapolis, for respondent.

HOLT, J.

The appeal is from an order denying the motion of one of the defendants, the Great Northern Railway Company for judgment non obstante or a new trial.

Henry L. La Bell a switchman in the employ of the Great Northern Railway Company while passing signals to the engineer of his switching crew, stepped onto an adjacent track of the Minneapolis & St. Louis Railway Company and was run down and killed by cars being pushed in thereon by a switching crew of the latter company. This action was brought by the special administrator of La Bell's estate, for the benefit of the widow and child of the decedent. Both companies were made defendants. There was a verdict in favor of the Minneapolis & St. Louis Company, and no attention to any question touching its liability is called for.

The accident occurred under or near the Seventh street bridge in Minneapolis. The Great Northern has here a lead track running in an easterly and westerly direction. From this lead spur tracks branch out northeasterly. The switch for the track No. 5 is under the bridge, for No. 6 a short distance further east, and for No. 7 still further. The locomotive, headed west, was pulling a string of 21 or 22 cars out of track 7 onto the lead westerly, and La Bell's duty was to pass the signal to the engineer from the switchman Norling, who was a little east of the switch for track 7, receiving the signal from the foreman at the end of the string. The lead track is not straight but dips to the south as it approaches the switch to track 7. This makes it more difficult to pass signals. The difficulty is increased under the bridge because of two pillars standing about 4 feet from the south rail of the lead. Parallel to this Great Northern lead track for some distance east and west of the Seventh street bridge is spur track No. 1 in the switchyard of the Minneapolis & St. Louis Railway. There is a dispute as to the distance between the two tracks at the time of the accident; plaintiff claiming it was a few inches less than 13 feet from center to center at the place of the accident, and that since then the Great Northern Company has moved its track about 18 inches north, and the latter contending that the track has not been moved, and that the distance from center to center of the two tracks at the place the deceased stood when hit has always been between 14 and 15 feet.

Appellant insists on judgment notwithstanding the verdict on three grounds: (a) Plaintiff was without capacity to sue; (b) no negligence on part of appellant was proven; and (c) the decedent assumed the risk. The conclusion to which we are forced upon the two last propositions obviates consideration of the first.

Appellant contends that no actionable negligence was proven against it, and, even if there had been, decedent as a matter of law assumed the risk which caused his death. The negligence charged against appellant was that the tracks in its switchyard were located too near those of the Minneapolis & St. Louis Road for the safety of the men engaged in switching operations; that in such operations it was necessary for the switchmen of appellant to go upon the tracks of the Minneapolis & St. Louis Road when pulling out onto the lead in question; and that a custom and practice had grown up under which both railroad companies protected the servants of the other who came upon or near the tracks in doing their work.

Plaintiff asserts a violation of sections 4275 and 4276, G. S. 1913, as proof of negligence, claiming that the distance between the lead track of the appellant and the parallel spur 1 of the Minneapolis & St. Louis Road was less at the time of the accident than the minimum prescribed by said sections. The trial court considered the statute inapplicable to the tracks in question, and rightly so, because by its very terms the law relates solely to after-constructed tracks. The evidence is conclusive that many years prior to the enactment of the sections mentioned these tracks were laid in the very place they were when decedent was struck. It is probably true that a compliance with the statute is not necessarily conclusive proof of freedom from negligence, since it may be said that the statute was designed to prescribe a minimum.

But statute or no statute, we are constrained to hold, under well-settled law, that there is no...