Miller v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 05 April 1918
• Docket Number: 20,745
• Citation: 167 N.W. 117,140 Minn. 14
• Parties: BARNEY A. MILLER v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
• Court: Minnesota Supreme Court

167 N.W. 117

140 Minn. 14

BARNEY A. MILLER v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

No. 20,745

Supreme Court of Minnesota

April 5, 1918

Action in the district court for Ramsey county to recover $25,000 for injuries received while switchman in defendant's employ and $250 for surgical expenses. The answer alleged the injury was caused by plaintiff's negligence, that the physical conditions attending the work done by plaintiff were observable and that plaintiff knew and appreciated the risk. The case was tried before Michael, J., who at the close of the evidence granted defendant's motion for a directed verdict. From an order denying his motion for a new trial plaintiff appealed. Reversed.

SYLLABUS

Master and servant -- negligence -- assumption of risk -- questions for jury.

1. The plaintiff, a switch-foreman, rode on a rod or bar extending across the front of the engine with his back to the boiler and in getting down to the foot board caught the clothing of one leg in the jagged end of a bar extending above and in the same direction as the footboard and projecting slightly beyond an upright brace to which it was fastened, and was thrown and injured. He was engaged at the time in the discharge of his duties and the place in which he was riding was one customarily used by switchmen. It is held that whether there was negligence of the defendant in respect of the projecting jagged end of the bar proximately causing the injury and whether the plaintiff assumed the risk were questions for the jury.

Master and servant -- Federal act inapplicable.

2. The Federal statute (36 St. 913), referring to locomotive boilers, is without application.

Barton & Kay, for appellant.

Barrows & Stewart, for respondent.

OPINION

DIBELL, C.

Action for personal injuries. A verdict was directed for the defendant. The plaintiff appeals from the order denying his motion for a new trial.

1. The plaintiff was employed by the defendant as foreman of a switching crew in its Dayton's Bluff yards in St. Paul. Between one and two o'clock of the morning of December 4 1916, he was taking a drag of cars from the Burlington yards to the Great Northern yards, a distance of some three miles. He got onto the footboard at the head end of his engine, next to the first car, the engine moving in backward motion. The yard clerk had given him an envelope containing the waybills showing the car destinations but had not marked, as was his custom, the destinations on the outside. To check them over conveniently he assumed a position on a rod or bar running across the front end of the engine with his back toward the boiler and his feet resting on the coupler plate. In getting...