McDonald v. Great Northern Railway Company
| Decision Date | 29 January 1926 |
| Docket Number | 24,958 |
| Parties | MAE A. McDONALD v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Wright county to recover for the death of plaintiff's intestate. The case was tried before Giddings, J., and a jury which returned a verdict for plaintiff. Defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial. Reversed.
Verdict based on defective brakes not sustained by evidence.
1. A conductor and an engineer in charge of a train received an order to wait at a station until another train cleared. In violation of this order, the engineer, with the approval of the conductor, took the train out on the track and proceeded resulting in a head end collision and the death of the engineer. The trial court held that a recovery could not be had on the negligence of the conductor and the case was tried and a verdict rendered on the theory that the brakes were defective in violation of the Federal Safety Appliance Act. Held:
(1) The rule is that to sustain liability there must be something in the evidence which renders the conclusion of defective brakes more reasonable than any other which would be consistent with the brakes being adequate.
(2) The duty to have the brake appliance in proper working condition is absolute.
(3) A violation of the Safety Appliance Act is inferred from the mere fact that the safety appliance fails to function properly.
(4) The fact that an employe violates an order from his employer does not remove him from the protection of the Federal Safety Appliance Act.
(5) That plaintiff's evidence rests in conjecture and is insufficient to sustain a verdict.
Negligence of conductor bars recovery by plaintiff.
2. Upon this appeal it is proper for the appellate court to consider the ruling of the trial court excluding a recovery on the ground of the negligence of the conductor:
(a) Under the rules of the company both the engineer and conductor had a duty, personal to himself, to see that the order was not violated.
(b) Its violation by the engineer was negligence which continued to the place of the collision and was the producing cause of the accident.
(c) The fact that the conductor was also negligent in not preventing the engineer, the primary wrongdoer, from violating the order, will not permit plaintiff to recover upon the theory that the conductor's negligence was a contributing cause.
Appeal and Error, 4 C.J. p. 670 n. 91 New.
Master and Servant, 39 C.J. pp. 385 n. 52; 386 n. 56; 887 n. 57 1058 n. 34; 1072 n. 65.
A. L. Janes and Hoke, Krause & Faegre, for appellant.
Samuel A. Anderson, for respondent.
This is an action to recover for the death of Hollis G. McDonald who was at the time of his death a locomotive engineer in the employment of defendant. There was a verdict for $20,000. Defendant appealed from an order denying its motion for judgment notwithstanding the verdict or a new trial. Defendant is an interstate railway company and decedent was at the time of his death engaged in interstate commerce work. The action is prosecuted under the Federal Employers Liability Act and the Federal Safety Appliance Act.
McCabe was the conductor and McDonald the engineer on a snowplow train, consisting of five units, a gondola car with snowplow, engine, flat car, dozer car and caboose. This train was fully equipped with automatic air brakes. In the engine, accessible to the engineer, was an air valve and another in the caboose known as the conductor's air valve. These valves were equipped with a handle for their operation and when opened remained so. The engine and caboose also had a dial or indicator showing the pressure of the air. On this train were Larson, Barnes and Saunderson, having the rank of conductors, acting as brakemen; Dahlin, the fireman; and Rassmussen in the cupola of the dozer car.
This train so equipped and manned was at the village of Delano on February 23, 1922, headed westerly for Willmar. On the same day defendant's passenger train No. 28 going east was run in two sections. McCabe and McDonald at Delano received from the train dispatcher a written telegraphic train order 56 which directed them not to move their snowplow train from Delano until the first section of train No. 28 had reached and cleared Delano. Each of these men read this order. Each had a copy of it. After the snowplow train made some yard movements, it came along at a speed of about two miles per hour by the station platform, where McCabe was standing. When the caboose was near McCabe, the engineer gave two short blasts of the whistle indicating that he was ready to go. This was answered by McCabe giving the highball signal indicating that he too was ready to go. Thus in direct violation of order 56 McDonald, knowing that the train No. 28 was not in and without objection from McCabe, took his train out on the track and started westerly.
Plaintiff obtained a verdict upon the theory that the air brakes were defective. The serious question is whether the evidence is sufficient to sustain the verdict -- that is, whether plaintiff has met the burden of proof which the law puts upon her.
Plaintiff's version is this: That, as the train pulled out of Delano, McCabe stepped onto the rear platform of the caboose where he rode for about 600 feet and then went in. The three brakemen being there, McCabe, under the safety rules of the company, handed five orders, including order 56, to Barnes, who arranged them in order and put on a clip. He then handed them to Larson, who, sitting on a cushion, with Barnes on one side and Saunderson on the other, read them aloud, and immediately inquired of McCabe about first section train No. 28. Thereupon McCabe reached for the air valve and pulled the air, because it then occurred to him that train No. 28 was coming toward them. McCabe says a tremendous impression was made on his mind. He opened the air valve wide to set the brakes in emergency. He went out of the rear door and to the platform steps on the right to signal the engineer to stop the train, and he says the engineer was leaning out of the cab looking ahead. McCabe stepped back for only a moment, because of flying snow, and then continued to watch the engineer until he looked back and saw the signal. McCabe says to his best judgment when he pulled the air the train was near a certain crossing, about 1 1/4 to 1 1/2 miles from the depot; that between the time he set the brakes and the time when the engineer looked around, the train ran one mile; and that, during that mile, the speed of the train did not decrease, and that the engine was working (using) steam; that the engineer, upon seeing the signal, pulled his head in and the engine stopped working steam; that the train then ran 1,000 to 1,200 feet and came to a standstill; that he jumped off before the train stopped and started to the engine to tell the engineer to back away and that he had gotten near the tank of the engine when the crash came.
On a former trial of this case McCabe testified, in answer to how far the train ran after he set the brakes, as follows:
He further testified on the prior trial that he paid no attention to the distance the train ran after he pulled the air, but it seemed quite a distance. McCabe says he has been a conductor for 18 years; that there was no doubt in his mind but that the air brakes were working all right and were in good condition; that when he opened the air valve he plainly heard the air rush out, and from the sound of the air at that time he had no reason to feel that there was anything wrong with the brakes; that he never thought at any time that there was anything wrong with the brakes; the caboose windows were frosty so a person inside could not see out; that he did not know how far the place of collision was from Delano; that he did not know where Larson was when he, McCabe, was on the rear of the caboose after turning the air valve; that he does not recall a single object along the track, a single place or a single structure or anything to indicate to him where the train was after he went into the caboose on leaving Delano until the collision occurred; that there was no occasion to look at anything until after he pulled the air and that then he didn't have time to look at anything, and he says: "It seemed a long time while you were going through it, but when you commence to think it over afterwards and getting the time of the other train and everything going over the same track then you know pretty well that it didn't take long;" that until he pulled the air he had no reason to give attention to the lapse of time.
Upon the assumption of the truthfulness of McCabe's testimony, plaintiff put in evidence the expert opinion of three locomotive engineers, to the effect that the brakes were not in proper working condition. This is based upon the statement of McCabe, as to location of the train, and it ran a mile after he pulled the air, without reduction in speed, and then 1,000 to 1,200 feet farther after the steam was shut off.
Barnes Larson and Saunderson called by the defendant say, as the train left Delano, they were with McCabe on the rear platform and that when out 1/4 to 1/2 mile, they went into the caboose; that the train was going about 40 miles per hour; that on entering the caboose they removed their mittens and rubbers and visited briefly; that Barnes upon receiving the orders from McCabe unfolded and arranged them in order to...
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