Meyers v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company
| Decision Date | 02 July 1926 |
| Docket Number | 25,440 |
| Citation | 209 N.W. 892,168 Minn. 122 |
| Parties | RUTH MEYERS v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Plaintiff appealed from an order denying his motion for a new trial after verdict directed for defendant, R.D. O'Brien J., in an action in the district court for Ramsey county to recover for death of her intestate. Affirmed.
Directed verdict for defendant justified by the evidence.
1. Under the evidence, as disclosed by the record, the trial court was justified in directing a verdict in favor of the defendant.
Failure of evidence to show negligence of defendant contributing to death of switchman.
2. The evidence fails to show negligence on the part of the defendant or its switchman Witham which contributed to the death of plaintiff's intestate.
Evidence, 22 C.J. p. 84 n. 71.
Master and Servant, 39 C.J. p. 1054 n. 26; p. 1164 n. 45.
See notes in 47 L.R.A. (N.S.) 58; L.R.A. 1915C, 61; 10 A.L.R. 1226; 14 A.L.R. 736; 24 A.L.R. 642; 29 A.L.R. 1209; 18 R.C.L. p. 853; 3 R.C.L. Supp. p. 862; 4 R.C.L. Supp. p. 1219; 5 R.C.L. Supp. p. 1008.
Tom Davis and Ernest A. Michel, for appellant.
John E. Palmer and John L. Erdall, for respondent.
Appeal by the plaintiff from an order denying a new trial after a directed verdict for defendant. The defendant is an interstate carrier by railroad. George Meyers, past 22 years of age, was killed at Gladstone, Michigan, March 20, 1923, while in the employ of the defendant as a switchman in its yards at that place. This action was brought under the Federal Employers Liability Act to recover for his death which occurred between 3 and 4 o'clock in the morning. He had been in the employ of the defendant company something over a month and had worked as a switchman for another railroad about 18 months.
Considerable was said at the trial and on this appeal as to his age and inexperience as a switchman, but no issue to that effect appears in the pleadings and evidence offered on behalf of plaintiff along that line was excluded. Other assignments of error in the rulings on the admission and exclusion of testimony are urged. We have considered them, but extended remarks along that line are unnecessary because of the conclusion we reach upon the main issues.
At the close of the testimony, defendant moved for a directed verdict upon the ground that plaintiff had failed to show any actionable negligence on the part of defendant which contributed to the death of plaintiff's intestate and that his death was due to accident or to his own negligence for which respondent was not responsible. The motion was granted and from an order denying a new trial, plaintiff appealed.
There is a lead track in the yard extending from the northeast to the southwest with 10 switching tracks extending therefrom in a westerly direction which are connected with the lead track by switches approximately 100 feet apart. These tracks are numbered from south to north from 2 to 11, consecutively. The switching crew was composed of Hendrickson, the engineer; the fireman, Evans; the foreman, decedent Meyers, who followed the engine; and Witham, the field man. It was the duty of Meyers to work near the engine and pass signals to the engineer, also to cut off cars in switching movements. It was Witham's duty, as field man, to throw switches, give signals for Meyers to pass to the engineer, and to do other work at a distance from the engine. The foreman had general supervision of the making up of trains.
The crew commenced work at midnight and had made up a train on the west end of track 3. They then started to make up another train on the east end of the same track. Accordingly, a caboose was put on that track back next to the train which had already been made. the engine then went in on track 6, Meyers riding on the footboard of the tender and Witham attending to the throwing of switches and making couplings. The foreman gave an order to "pull six." There was snow on the ground and the weather was cold. The engine had difficulty in moving 18 cars and observing this the foreman atached all of the cars but 7. The engine then pulled out on the lead track with 7 cars. Meyers dropped off near switch 7 and on signal from Evans detached the rear 2 of the 7 cars and they were kicked in on track 3. The other 5 cars were empty and remained attached to the engine. The foreman again signaled to pull track 6, by lantern signal and by hollering to Meyers as he passed him. Witham was between switches 4 and 5, saw the signal and heard the oral order. The foreman again left he lead track and walked west between tracks 5 and 6 to make the coupling onto the remaining 11 cars. He did not apprise either Witham or Meyers of his intention. The engine stopped near switch 9 so that the last of the 5 cars cleared switch 6. Witham testified that at that time he was near switch 6 and gave an easy back-up signal with his lantern.
The engineer testified that while his engine was standing near switch 9 Meyers stepped off on the ground and gave him a kick signal with his lantern, then stepped back on the footboard and pulled the coupling pin; that he then started his engine backwards towards track 6. As the first of the 5 cars reached Witham, he swung onto the end nearest the engine where the full ladder was. In so doing, he had his lantern in his right hand and reached up to the step of the ladder with both hands and threw his feet into the stirrup.
After the train had backed a few carlengths, Witham observed that the speed was getting greater than was safe for the intended coupling on account of the limited room they had on track 6. Noticing that he was on a curve and out of sight of the engineer, he got off and ran back to the lead, giving the engineer stop signals. The foreman, standing by the side of track 6, heard the cars increasing in speed and started immediately back to the lead giving the engineer like signals. These were observed by the engineer who promptly applied the emergency, reversed his engine and sanded the rails. Neither Witham nor the foreman knew that Meyers had given the engineer a signal to kick the 5 cars. As the brakes were applied to the engine, the 5 detached cars continued at a speed of from 12 to 15 miles per hour and struck the standing cars. Notwithstanding the efforts of the engineer, the engine slid into the first of the 5 cars with sufficient force to drive down the drawbar on the car, allowing the car and tender to come so close together that Meyers, who was on the footboard, was crushed and killed.
It is urged on behalf of appellant that Witham was negligent in handling his lantern while boarding the car, by raising his lantern straight above his head, similar in manner to a signal for a cut-off of the cars attached to the engine. It is argued that such movement was seen by Meyers from the footboard and he mistakenly took it for a signal to cut off all the cars.
Testimony was offered tending to...
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