Peneff v. Duluth, M. & N. Ry. Co.
| Decision Date | 19 June 1925 |
| Docket Number | No. 24746.,24746. |
| Citation | 164 Minn. 6,204 N.W. 524 |
| Court | Minnesota Supreme Court |
| Parties | PENEFF v. DULUTH, M. & N. RY. CO. |
Appeal from District Court, St. Louis County; Edward Freeman, Judge.
Action by Peter Peneff against the Duluth, Missabe & Northern Railway Company. Verdict for plaintiff, and defendant appeals from an order denying motion for judgment notwithstanding the verdict or new trial. Order affirmed.
Frank D. Adams, Elmer F. Blu, and Dennis F. Donovan, all of Duluth, for appellant.
Gannon, Strizich & Farnand, of Hibbing, for respondent.
Action for personal injuries. After a verdict for plaintiff, defendant appeals from the order denying its motion for judgment notwithstanding or a new trial.
The injuries were sustained by plaintiff while he was engaged as a car "lander" in the employ of the Shenango Furnace Company at the Webb mine near Hibbing. Defendant had placed a string of ore cars at the upper end of a gravity track ready to be let down to the ore pockets for loading. It was plaintiff's duty, as the cars were needed, to release the brakes and permit them to move by gravity to the pockets, and to set the brakes and thereby stop them when in proper position for loading. On the occasion in question he had just "dropped" five empty cars to the pockets. Two had been loaded, and he had spotted another in position to receive ore, the first two having been permitted to move onward out of the way. After setting the brake on the third car, plaintiff waited for his partner in the "pockets up stairs" to open the chutes, which was done. When the car was about half full, it "started to shake a little bit, * * * to go down hill." What then happened is narrated by plaintiff thus:
"I jumped on the brake to stop it, and the brake came loose — just said b-z-z-z, and I fell right backward * * * between two cars on the track, and lit with my leg right on top of the rail, and the first wheel went right through my leg."
The brake was of the three to one variety, and plaintiff was using a steel bar or club to increase his leverage. The main proof of negligence came from a witness who examined the car, and particularly the hand brake mechanism, immediately after plaintiff was hurt. On the brake shaft and immediately under the platform is a 3-inch cog wheel meshing with another 9 inches in diameter. The latter is mounted upon and actuates a short shaft, which, through a chain winding around it as it is turned, conducts the force which applies the brake shoes to the wheels.
That witness, Dargan, testified that the cogs on the two wheels immediately under the platform were so much worn that when, in the course of his inspection immediately after the accident, he attempted to set the brake, using a bar similar to that of plaintiff's, the gearing slipped. He said:
"I looked at the brake and took a look at the cogs and the cogs were badly worn on the bottom, and furthermore, I went to try it to see what really had happened, and in pulling the wheel with the bar they would slip if you give any pressure on it, any amount of pressure, * * * the cog wheels would slip; they wouldn't jibe."
He also testified to some looseness, as we understand his testimony, in the bearing which carried the brake staff through the platform.
1. Notwithstanding the strong case made for defendant, indicating a thoroughgoing inspection of the car not long before the accident, and also subsequently, without disclosing the defect discovered by Dargan, we decline to interfere with the verdict based upon his testimony and that of plaintiff. The witnesses for defendant who tested the brake immediately after the accident did not use a bar. One, Soular, "didn't look at the gears," and "didn't know much about them." One of defendant's car inspectors, testifying concerning the car supposed to have caused plaintiff's injury, admitted that his customary inspection of the brake consisted of ...
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