Mere v. Railway Transfer Company of the City of Minneapolis
| Decision Date | 13 March 1914 |
| Docket Number | 18,440 - (272) |
| Citation | 145 N.W. 1068,125 Minn. 159 |
| Parties | JOSEPH LA MERE v. RAILWAY TRANSFER COMPANY OF THE CITY OF MINNEAPOLIS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $25,000 for personal injury received while in the employ of defendant. The answer alleged that, if plaintiff received any injury, it was caused solely by his failure to exercise ordinary care for his own protection, and that such omission was the proximate cause of any injury received. The case was tried before Booth, J., who denied defendant's motions for a directed verdict, and a jury which returned a verdict for $6,000 in favor of plaintiff. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Federal Safety Appliance Act -- Employer's Liability Act.
In an action for personal injuries by a switchman against a railroad engaged in an interstate operation it is held:
(1) The evidence was sufficient to go to the jury on the question whether the engineer, a fellow servant, was negligent in making an emergency stop when there was no emergency; and that if he was negligent the defendant was chargeable with his negligence within the provisions of the Federal Employer's Liability Act of April 22, 1908, (35 St. 65.)
(2) The Federal Safety Appliance Act, as amended by the act of March 2, 1903, (32 St. 943) requiring air brakes in operation on all trains, applies to an engine and 15 cars loaded and switched in the yards of the defendant transfer railway company and placed upon a track set apart for the use of a particular road, and thereafter moved by the engine and crew some six or seven blocks, a distance of something like a half mile, across a number of switches, and across and along the two parallel main tracks of an independent railroad, and into the yards of the company to which the cars belonged.
(3) The failure of a railroad company to have the air brakes in operation in an interstate movement makes it liable to an employee proximately injured because of such failure regardless of its actual negligence.
(4) The evidence was sufficient to justify the finding of the jury that the failure to have the air brakes in operation was the proximate cause of the plaintiff's injury.
(5) Contributory negligence is not a defense to an action based upon the Federal Employer's Liability Act, or the Federal Safety Appliance Act, except as in the former case it may reduce damages; and the issue of contributory negligence having been fairly tried and submitted, and there being no claim of excessive damages, the question of contributory negligence is not of importance.
(6) The assumption of risks is not a defense when the action is based upon the Federal Safety Appliance Act, for section 8 of the act excludes it; and the Employer's Liability Act of April 22, 1908, apparently abrogates it. "It is not a defense to a negligent act of the engineer; but an employee assumes the risks necessarily attendant upon the proper operation of the train." In this case the question of the plaintiff's assumption of risks was for the jury.
W. H Bremner and F. M. Miner, for appellant.
Samuel A. Anderson, for respondent.
Action for personal injuries. Verdict for the plaintiff. Defendant appeals from the order denying its alternative motion for judgment or for a new trial.
The plaintiff was a switchman. The complaint alleges negligence in the engineer of the defendant in stopping the train, which the plaintiff was riding, so suddenly as to throw him from the ladder on the side of a car; and in not complying with the provisions of the Federal Safety Appliance Act requiring it to have in operation air brakes.
The verdict was general. If, therefore, either ground of negligence was improperly submitted, or the verdict on either not justified, there must be a new trial, as also there must be if the question of contributory negligence or of assumption of risks was erroneously submitted. If the evidence shows no right of recovery there must be judgment notwithstanding the verdict.
1. The first ground of negligence is that the engineer of the train on which the plaintiff was working, his fellow servant, negligently stopped the train with a jerk, throwing him from the side of the car down which he was climbing. This ground of liability is based upon the Federal Employer's Liability Act of April 22, 1908 (35 St. 65.)
The specific claim of negligence is that an emergency stop was made when there was no emergency. The evidence is very much in dispute. The plaintiff's claim has support. There was testimony in contradiction of it and testimony impeaching it. The case was fairly submitted to the jury. The trial court approved the verdict. The sufficiency of the evidence to sustain it is earnestly challenged. All of it has had our attentive consideration. The defendant relies upon Beaton v. Great Northern Ry. Co. 123 Minn. 178, 143 N.W. 324. This case is proper for consideration in this connection but it is not necessarily controlling. We are unable to say that the jury could not find as it did, and the question of the defendant's negligence is not for us as one of law.
2. The second ground of negligence is the failure to have in operation air-brakes.
The original Safety Appliance Act of March 2, 1893 (27 St. 531), was amended April 1, 1896 (29 St. 85) and was again amended March 2, 1903 (32 St. 943). Section 1 of the last amendment provides that the requirements as to train-brakes, automatic couplers, etc., shall apply to "all trains, locomotives, tenders, cars, * * * used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars * * * used in connection therewith, excepting those trains, cars and locomotives exempted by the provisions of section six of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six * * *." The exemption was of trains composed of four-wheeled cars, or trains of eight-wheeled standard logging cars, or to locomotives used in hauling such trains when such cars or locomotives were used exclusively for the transportation of logs. There was no other exemption. Congress could easily have made one. Such an exemption is made in the Safety Appliance Act of Minnesota, Laws 1909, p. 609, c. 488. The courts should make one by construction hesitatingly. The requirements as to automatic couplers and air-brakes are in the statute in immediate connection.
At the time of the passage of these Acts the terminal and belt-line and transfer companies and the method and extent of their operations were well understood. In the industrial centers the transfer business was largely conducted by them. They switched the cars, made them up into trains, varying in length, and hauled them varying distances as local conditions required.
The defendant is a transfer company. It is conceded that the operation in which it and the plaintiff were engaged at the time of his injury was an interstate operation. It was taking some 15 cars, all or all except one loaded, sometimes called a "drag," from its yards to the Chicago, Milwaukee & St. Paul yards, referred to sometimes as the Milwaukee Transfer. An important question is whether these cars with the locomotive hauling them constituted a train within the meaning of the Safety Appliance Act. The cars had been loaded at the mills and switched on to track numbered 7 which was set apart for the use of the Milwaukee road. They were equipped with air-brakes, and the air-hose connections were coupled while they stood on track 7. There was no air in the air-line, that is, there was no connection with the engine. The cars were in use in interstate commerce. They were about to start on an interstate journey and their first movement was to the Milwaukee yards. In making this movement the train went on an up-grade onto the north bound main line of the Minneapolis & St. Louis Railroad Co., passed by a cross-over to the south-bound main line, followed it a short distance, crossed in its course a number of switches, and passed onto the Milwaukee Transfer. The main lines of the Minneapolis & St. Louis were traversed for something like four blocks. The length of this particular movement was some six or seven blocks, something like a half-mile. The danger was less than if the haul had been longer, just as the danger of one haul was less than of several. There was more danger because of traversing and crossing the two main lines of the Minneapolis & St. Louis. There was less danger than if there had been a number of main lines to cross and less danger than if a main line had been traversed a greater distance. The defendant hauled the transfers for four roads. It connected the air on all trains except those of the Milwaukee. The Milwaukee was the shorter haul. The danger from not using air in the Milwaukee haul may have been different in degree from the danger in other hauls, and sometimes it may have been different in kind, and it may have differed at times in degree and in kind from a main-line haul, at times being greater and at times less. In general the dangers were similar. They came from the fact that the engineer, without the air connected, was not in control of his train, and what the particular result might be on a long haul or a short haul, or on a main-track line, or on a haul through the transfer-yards, either to the trainmen or to the public, no one could foretell.
We are of the opinion that it should be held that the so-called "drag" was a train within the meaning of the Safety Appliance Act. The switching had been finished when the cars were on track 7 and coupled. They were then...
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