Otos v. Great N. Ry. Co.

• Decision Date: 29 January 1915
• Docket Number: No. 18955[182].,18955[182].
• Citation: 128 Minn. 283,150 N.W. 922
• Parties: OTOS v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

128 Minn. 283

150 N.W. 922

OTOS

v.GREAT NORTHERN RY. CO.

No. 18955[182].

Supreme Court of Minnesota.

Jan. 29, 1915.

Appeal from District Court, Yellow Medicine County; Stephen A. Flaherty, Judge.

Action by H. W. Otos against the Great Northern Railway Company. From an adverse order, defendant appeals. Affirmed.

Syllabus by the Court

A car in process of transportation from one state to another is in transit and is being used in interstate commerce while being switched at an intermediate yard with other interstate cars, although there may be a purpose to switch the defective car to a repair track for repair of a defective coupler before it leaves the yard. The federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1913, ss 8605-8612]) and the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, ss 8657-8665]) apply to such a car.

The act of a switchman in stepping between moving cars to make an uncoupling because of a defective coupler is not the sole proximate cause of an injury received by him while so doing. The violation of the statute is a contributing cause of the injury.

The damages as reduced by the trial court are not excessive. Defendant was not entitled to a reduction of the amount of plaintiff's damages because of a prospect that a surgical operation might relieve part of his injury.

M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

John I. Davis, of Benson, and Tom Davis and Ernest A. Michel, both of Marshall, for respondent.

HALLAM, J.

[1] Plaintiff was a switch foreman in defendant's yards at Willmar. On September 11, 1912, a train came into Willmar from the West. It contained, among others, a loaded car from Willow Lake, S. D., consigned to Minneapolis. This car was coupled with automatic couplers to a car consigned to Duluth, by way of Superior, Wis. The pin lifter on the Minneapolis car was out of order. At Willmar the Duluth car was to be transferred to another train. There is some evidence that the Minneapolis car was to be switched to the repair track, before it proceeded further, for the purpose of repairing the coupler. There is no evidence that it was ever so transferred. The car was carried to Minneapolis on the following day. Plaintiff and his crew were engaged in cutting up this train and switching the cars to be removed from it to their proper destination. At the time of the accident he had three cars attached to a switch engine; the Duluth car was in the rear and the Minneapolis car in the middle. Plaintiff was about to cut off the Duluth car in order to switch it to the Duluth track. He stood on the side from which the pin lifter was missing. He could not make the uncoupling from that side without going in between the cars. This he did, and in doing so he was run over and sustained severe injuries.

It is conceded that defendant's road at Willmar is a highway of interstate commerce and that the traffic in which this car was engaged when in transit was interestate traffic, and that if it was in transit at this time, then, under the federal Safety Appliance Acts and Employers' Liability Act, defendant is liable for any injury caused by the defective coupler, and neither contributory negligence nor assumption of risk constitutes any defense. The contention of defendant is that ‘the condition of the car was such that it had to go to a repair track for repair,’ that ‘it was necessary that the through movement of the car be interrupted at Willmar for the purpose of repairs,’ and that therefore ‘the defective car has been withdrawn from commerce’ and was ‘not in the course of transit.’

We are of the opinion that at the time of plaintiff's injury this defective car was in transit and was being used in interstate commerce. A car in process of transportation from one state to another is usually in transit and engaged in commerce from the time it is started upon its passage until the delivery of its cargo at the place of destination. United States v. Colorado & N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27,15 L. R. A. (N. S.) 167,13 Ann. Cas. 893. It is not taken out of commerce because in need of repair, nor because of a purpose to repair it, nor because of a design to set it upon a repair track in due course for that purpose. We need not consider what the situation might have been if this car had been set at rest on the repair track. This had not been done. At the time of the accident it was still part of an interstate train. Its cargo had not reached its destination and was not ready for delivery to the consignee. It was attached to and was being moved with another interestate car, from which it was in due course being uncoupled. Clearly the defective car was in transit and was being used in interestate commerce.

The federal decisions leave no doubt upon this point.

In Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590, a car loaded and being used in moving interstate traffic was found with a defective coupler. The car was marked ‘in bad order,’ and a repair piece sent for, but the company kept on moving it about in connection with other cars, and finally ordered the injured employé to couple it to another car. This he tried to do and was injured. It was held that the car in question was being used in interstate traffic.

In C., M. & St. P. Ry. Co. v. United States, 165 Fed. 423, 91 C. C. A. 373,20 L. R. A. (N. S.) 473, it was said that, if a car is one of the connecting links between the engine and the caboose and a constituent part of a train moving on an interstate mission, the car is engaged in interstate commerce. See, also, Erie R. Co., v. Russell, 183 Fed. 722, 106 C. C. A. 160;Southern Ry. Co. v. Snyder, 205 Fed. 868, 124 C. C. A. 60.

[2] 2. Defendant contends that the proximate cause of plaintiff's injury was not the defective condition of the coupling, but his violation of a rule of the employer forbidding employés going between moving cars. It appears that there was such a rule. There is evidence that in this yard it had, with the knowledge of the yardmaster, been more honored in its breach than in its observance. But, whatever may be...