Olson v. Minneapolis & St. L. R. Co.

• Decision Date: 02 May 1899
• Citation: Olson v. Minneapolis & St. L. R. Co., 76 Minn. 149, 78 N. W. 975 (Minn. 1899)
• Court: Minnesota Supreme Court
• Parties: OLSON v. MINNEAPOLIS & ST. L. R. CO.

76 Minn. 149

78 N.W. 975

OLSON

v.MINNEAPOLIS & ST. L. R. CO.

Supreme Court of Minnesota.

May 2, 1899.

Appeal from district court, Hennepin county; Charles B. Elliott, Judge.

Action by Lewis H. Olson against the Minneapolis & St. Louis Railroad Company.Finding for plaintiff.From an order refusing a new trial, defendant appeals.Reversed.

Syllabus by the Court

From the evidence in this action it appeared that on arriving at a terminal yard as a brakeman on one of defendant's incoming freight trains, plaintiff, in accordance with a well-established custom among brakemen, changed his clothing, leaving his working suit in the caboose or way car, although he knew that it was not at all probable that said caboose would be attached to the outgoing train to which he would next be assigned for duty.Assuming that because of such custom plaintiff would have a right, as a licensee, to return to the yard and to the caboose for the purpose of obtaining his clothes, it is held that this license would not justify him in going upon a caboose attached to a moving train, in search of his clothing, or in jumping from one of the platforms of said caboose, when through with the search.While engaged in these actshe was not in the service of defendant in the line of his employment, nor was he acting within the scope of his license.He had no cause of action against defendant for an injury caused by his coming in contact with a defectively constructed switch stand when jumping from the caboose.Albert E. Clarke, for appellant.

F. D. Larrabee, for respondent.

COLLINS, J.

Appeal from an order denying defendant's motion for a new trial in a personal injury action.Taking plaintiff's statement as true (and the jury must have so found), the only facts which we deem important in disposing of the case are as follows: Plaintiff had been in defendant's service as a brakeman upon freight trains for over one year when the injuries were received.There were two freight train yards at Minneapolis, the northern terminus of the road,-one known as the ‘Cedar Lake Yard,’ where outgoing trains were made up, and from which they started; and the other, about 40 rods southerly, called the ‘Kenwood Yards,’ the end of the trip for all incoming freight trains.On the day in question plaintiff came into the yard last mentioned as a brakeman on train numbered 57 (conductor, Williams), arriving at 2:50 p. m., or within one hour thereafter.Just before the train reached the yard, plaintiff changed his clothes, leaving, as seems to have been a custom among brakemen, his working suit in the caboose or way car.He left the train at or near the yard, and, after going to his boarding house, near by, visited the train master's office, to see if he had been bulletined for his next trip.He found no orders, went away, and about 7 p. m. returned to the office.He then asked for a pass to Albert Lea, his home, to be used upon passenger train No. 6, which left Minneapolis that evening, his object being to go home on business.The train master stated that his next trip out would be at 5:20 next morning, on No. 34, but if he would go out and find another brakeman, by the name of Gilson, and induce him to go out on No. 34 next morning, the pass would be furnished, and he could go to Albert Lea.Plaintiff returned in a short time with Gilson, but meantime the train master had been informed of the sickness of a brakeman who was bulletined to go out at 10:40 p. m. on train No. 32(conductor, Campbell), and therefore declined to issue the pass.After some conversation it was agreed that plaintiff should go to Albert Lea that night as a brakeman on No. 32, while Gilson should go out next morning on No. 34.During this conversation plaintiff stated to the train master that he was tired and sleepy, having been on duty the previous night, and before going out would have to get his working clothes out of Conductor Williams' caboose, which, as he well knew, had, in accordance with the custom, been moved up into the Cedar Lake yard.At this the train master informed plaintiff that he could go out to the yard and sleep in Conductor Campbell's caboose until the train started, and for this purpose gave him a note to the other brakeman, there being at least two on each train, which required the latter to do certain preparatory work so that plaintiff could ‘sleep in the caboose as long as possible,-till leaving time.’Taking this note, plaintiff, accompanied by Gilson, went to one or two places in the city, and then to the Cedar Lake yard, where they found the caboose which was to go out on No. 32(conductor, Campbell), and delivered the note to the other brakeman, Tyler, to whom it was addressed.It should be stated here that all freight train men were shifted about from train to train, but that each conductor retained his own caboose; so that it was very improbable that plaintiff, or any other brakeman, would go out with the conductor in charge when he came in, and of course equally as improbable that the caboose attached to the outbound train would be that brought in with the incoming train.The plaintiff understood...