Northern Pac. R. Co. v. Mortenson
| Decision Date | 10 September 1894 |
| Docket Number | 419. |
| Parties | NORTHERN PAC. R. CO. v. MORTENSON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. D O'Brien (J. H. Mitchell, Jr., Tilden R. Selmes, and T. D o'Brien, on the brief), for plaintiff in error.
C. A Severance (W. S. McClenahan, W. A. Fleming, C. K. Davis, and F. B. Kellogg, on the brief), for defendant in error.
Before CALDWELL, and SANBORN, Circuit Judges.
The defendant in error was in the employ of the plaintiff in error as head brakeman on a freight train running between Brainerd, Minn., and Fargo, N.D. In making this trip the train crossed a bridge having overhead tie beams. This bridge was within the limits of the company's yards at Fargo. The duties of the defendant in error required him to be upon the top of his train while passing through the Fargo yards and over this bridge. His usual position was on top of the second or third car from the engine, and he had to stand on the running board of the car in a position that would enable him to receive the signals of the conductor and rear brakeman, and transmit them to the engineer. On the 22d of March, 1890, while standing on the running board of a furniture car in the proper position to receive and transmit the signals, and in the attitude of doing so, as the train passed over the bridge, he was struck on the head by one of the overhead timbers of the bridge, and received the injuries for which this suit was brought. Furniture and refrigerator cars, which are in common use on the defendant's road are about 2 1/2 feet higher than ordinary box cars. The defendant in error had crossed the bridge in safety a dozen times or more while standing on the top of the box cars.
The principal questions discussed by counsel are: (1) Was it negligence for the company to maintain a bridge having overhead tie beams too low to admit of the safe passage of a brakeman standing on the running board of a furniture car, in the discharge of his appropriate duties, when no warning of the dangerous character of the bridge was given by telltales or otherwise? (2) Was the brakeman guilty of contributory negligence in not ascertaining, by measurement or accurate observation, that he could not pass safely under the overhead beams of the bridge while standing on the running board of a furniture car? Under the evidence in this case, these were not questions of law, but questions of fact for the jury. Under...
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