McLain v. Chicago Great Western Railroad Co.
| Decision Date | 12 April 1918 |
| Docket Number | 20,764 |
| Parties | B. McLAIN v. CHICAGO GREAT WESTERN RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Mower county to recover $20,000 for injuries received while in defendant's employ. The answer set out at length section 769 of the 1907 Code of Iowa granting cities of 5,000 inhabitants power to regulate the speed of railway trains running through the limits of such city, and an ordinance of Mason City, Iowa, regulating speed of trains, locomotives, etc., and alleged that plaintiff violated the order given him in reference to the running of his train, and at the time of the collision was running it in violation of that order; that he failed to observe the ordinance in approaching Mason City, and while within the corporate limits of the city he was running it at a speed of at least 40 miles per hour, and that the collision and whatever injuries plaintiff received were caused by his wrongful, reckless and careless acts. The case was tried before Catherwood, J., and a jury which returned a verdict for $10,000. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. From the judgment entered pursuant to the order for judgment defendant appealed. Affirmed.
Federal Employer's Liability Act -- construction of terms.
1. In an action under the Federal Employer's Liability Act the terms negligence and contributory negligence are to be used and interpreted in the light of the common law, as construed and applied by the Federal courts, free from legislative interference.
Federal Employer's Liability Act -- in all states uniform and paramount.
2. The act establishes a rule intended to operate uniformly in all the states, as respects interstate commerce, and in that field it is both paramount and exclusive. It can neither be extended nor abridged by common or statutory laws of a state.
Federal Employer's Liability Act -- municipal speed ordinance not admissible to prove contributory negligence.
3. Under the Federal Employer's Liability Act a municipal speed ordinance is not admissible to prove contributory negligence on the part of an engineer, in an action for damages for injury to his person, while engaged in interstate commerce.
Appeal and error -- assignments of error.
4. Assignments of error on rulings of the trial court, on the admissibility of evidence, considered and found to be without merit.
Appeal and error -- harmless error.
5. Remarks of counsel for plaintiff, made in his argument to the jury, held to be without prejudice to the rights of the defendant.
Damages not excessive.
6. Amount of the verdict considered and found not to be so large, under the testimony, as to justify this court in interfering therewith.
Briggs, Thygeson & Everall and J. N. Nicholsen, for appellant.
Dunn & Carlson and Sasse & French, for respondent.
This is an action brought under the Federal Employer's Liability Act, to recover for injuries which plaintiff claims to have sustained to his person while in the employ of the defendant railway company in interstate commerce, as a locomotive engineer on passenger train No. 15 running from Hayfield, Minnesota, through Austin, Freeman and Mason City to Clarion, in the state of Iowa.
The cause was tried at Austin in February, 1917, resulting in a verdict in favor of the plaintiff in the sum of $10,000. The defendant made an alternative motion for judgment in its favor, or for a new trial, which was denied. Judgment was thereafter entered upon the verdict, from which the defendant appealed.
There is little if any conflict in the testimony as to the facts leading up to the accident. On October 27, 1915, plaintiff was in charge of one of defendant's locomotives, pulling a first-class passenger train over its line as above stated. He was 55 years of age and had been a passenger engineer for 11 years. The train was made up of the locomotive, baggage car, two coaches and a buffet car, making it about 310 feet in length. The train was late and plaintiff received orders at Austin to run 25 minutes late to Mason City. Under this order the train would pass Freeman, a small flag station four miles from Mason City, not earlier than 2 o'clock p.m., its regular schedule time at Freeman being 1:35, and its leaving time at Mason City, 1:53. Plaintiff had received an order advising him that all first class trains had arrived and departed, which, under the defendant's rules, entitled him to a clear track from Freeman to Mason City. The train passed Freeman at 2 o'clock, running about 40 miles per hour. It slowed down to about five miles per hour at bridge 53, one mile west of Freeman, and approaching the place of the accident within the corporate limits of Mason City, about one mile east of the depot, was running at the rate of about 35 miles per hour. At this place the track curves to the left, with side-tracks on either side which were pretty well filled with cars. Plaintiff had shut off steam three-eighths of a mile before reaching the place of the accident, and was standing by his seat in the cab looking out ahead over the boiler of the locomotive, when he saw a caboose attached to a freight train on the main track ahead. He applied the brakes in emergency, opened the sanders, and started to get off on his side of the locomotive, but, observing the side track full of cars, he crossed to the opposite side, went down onto the step and jumped off, injuring his right shoulder in the fall. The freight train was moving west at about four miles per hour. Plaintiff's engine struck the caboose, practically demolishing it, but doing little damage to the locomotive. When plaintiff got up he was near the rear end of his train. He walked up to the engine, climbed into the cab, looked at his watch, and it was eight minutes past two.
It is not questioned in the record but that the freight train was trespassing upon the time of the passenger, which, under the rules of the company, should have been in the clear of the main track by not later than two o'clock, the time that the passenger, under its order, was due to leave Freeman. The freight train was not protected by a flag man, nor was any torpedo on the track. That the defendant and the freight crew were grossly negligent requires no argument. The freight was an inferior train going in the same direction, and no explanation was offered for its presence at that time on the main track over which the passenger had the right of way.
Appellant's 34 assignments of error may be disposed of under four headings: First, contributory negligence on the part of the plaintiff; second, rulings on the admissibility of certain evidence; third, improper remarks of counsel during his argument to the jury; fourth, excessive damages.
Upon the trial defendant offered in evidence an ordinance of the city of Mason City, which prohibited the running of trains within the corporate limits at a speed greater than eight miles an hour, and providing a penalty for its violation. The ordinance was received over objection. It is not disputed but that the ordinance has all the force and effect of a statute. It is the contention of the defendant that plaintiff was guilty of contributory negligence, as a matter of law, in running his train at a rate of speed exceeding 8 miles an hour within the corporate limits of the city, in violation of the ordinance.
To determine whether the ordinance was properly admitted in evidence, it becomes necessary to consider the act under which this case was brought.
It is well settled that the Federal Employer's Liability Act ...
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