McDonald v. Chi., St. P., M. & O. Ry. Co.
| Decision Date | 02 October 1889 |
| Citation | 41 Minn. 439,43 N.W. 380 |
| Parties | MCDONALD v CHICAGO, ST. P., M. & O. RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
The plaintiff, an employe of defendant, was engaged in turning an engine upon a turn-table, with the assistance of another engine upon an adjoining track, a stick being placed between them, which was held by the plaintiff. When the pressure was applied, the engine upon the table slid or ran off, and became fast in the curb. The stick broke, and plaintiff was injured between the engines as they were suddenly brought together. The evidence tended to show that the turn-table was in bad order, and unsuitable for the use required, and that the manner of operating it by the aid of another engine was authorized by the defendant. Held, under the evidence in the case, that whether the defendant was guilty of negligence in respect to the condition and use of the turn-table, and whether the plaintiff was chargeable with contributory negligence, were questions properly submitted to the jury. Held also, upon the case made by the evidence, that it was open for the jury to find that the plaintiff did not know or appreciate the risk of the work upon which he was engaged, and that in the exercise of reasonable care he was not bound to understand or appreciate the same.
Appeal from district court, Ramsey county; WILKIN, Judge.
S. L. Perrin, (J. H. Howe and C. D. O'Brien, of counsel,) for appellant.
John D. O'Brien and I. V. D. Heard, for respondent.
The principal questions in this case arise on defendant's exceptions to the ruling of the court in refusing to dismiss the action upon the plaintiff's evidence, and in refusing to direct a verdict upon the whole evidence in the case. The other exceptions which were taken to the admission of testimony in the case do not require any consideration, as we think the legal questions thereby presented are not doubtful or important. The discussion is therefore practically narrowed down to the question whether the decision of the trial court affirming that the verdict is supported by the evidence is sustained by the record. Plaintiff suffered the injury complained of while in defendant's employ in assisting to turn an engine on its turn-table in East St. Paul on the 3d day of April, 1887. He was one of several employes engaged under the direction of a foreman, whose duty it was to care for the engines in the roundhouse, and to turn the incoming or outgoing engines upon the turntable as required. He had been so employed about three months. The evidence on material points is conflicting, but there is evidence in the case reasonably tending to prove that the turn-table, which had been in use for about seven years, was defective or inadequate and unsuitable for the use to which it was subjected; that it was too small for the class of large engines then in use; that it was raised too high in the center, so that it was not easily kept balanced, but “tipped” or canted over to one side; that the wheels upon which it turned in the pit were much worn, and sometimes did not touch the rails; and that it was ordinarily moved with great difficulty by prying or “pinching” with iron bars placed under the wheels, so that it was a long and laborious task to turn it, when if it had been suitable for the purpose and in good order it could have been readily turned with levers in a few minutes. The evidence also tends to show that at the time he commenced work, and while he was there, it was the practice to call to their assistance other engines, as opportunity might offer, to aid in turning the table. The track ran close to the table, and a stick about eight feet long and four inches in diameter, prepared and kept for the purpose, was so adjusted between the engine upon the track and that upon the table as to enable the former to push the latter along on the curve a considerable distance, or till beyond reach. This mode of turning the table sufficiently appears to have been with the authority and sanction of the foreman, and was frequently resorted to while the plaintiff was there. He testifies that the foreman ordered it whenever there was a chance to get an engine for the purpose, and another witness, the engineer upon the switch-engine that assisted in turning the table when the accident occurred, testifies that the foreman had asked him to assist in the same way two months before, and that it was the practice “off and on” all winter. Notice to the defendant of the condition of the table would be presumed after a reasonable time. On the day in question the switch-engine was passing down the track nearest the table, distant about 14 inches. Another engine had been backed out upon the turn-table to be turned around and sent out upon the road. It...
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