Plachetko v. Chicago, Burlington & Quincy Railroad Co.
| Decision Date | 08 February 1918 |
| Docket Number | 20,554 |
| Citation | 166 N.W. 338,139 Minn. 278 |
| Parties | MARTHA PLACHETKO v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by the administratrix of the estate of Joseph Plachetko, deceased, to recover $25,000 for the death of her intestate while in defendant's employ. The answer alleged that plaintiff's intestate was negligent, that the physical conditions surrounding the work were patent and that he assumed the risk. The case was tried before Michael, J., who granted defendant's motion for a directed verdict. From an order denying her motion for a new trial, plaintiff appealed. Affirmed.
Master and servant -- failure to warn servant of danger -- evidence not conflicting.
In this action for wrongful death, alleged to have been caused by defendant's negligent failure to give the customary warnings before moving cars in a repair yard, it is held:
(1) The evidence affirmatively shows that the customary warning was given deceased by calling out in his presence that the cars between which he was caught were about to be moved.
(2) The testimony fails to show that defendant omitted to ring the bell on the locomotive at the time the cars were moved. The positive direct testimony of witnesses to the fact that the bell was ringing was not overcome, nor made a question for the jury by the equivocal impeachment of one or two witnesses, nor by the testimony of others who were absorbed in their work, and who could only testify that they were not conscious of its ringing and could not say whether it did or not.
Hall & Tautges, for appellant.
Barrows & Stewart, for respondent.
The appeal is from the order denying a new trial, there having been a verdict directed in favor of defendant.
The main question is whether there was any evidence to go to the jury of the negligence alleged as the cause of the death of plaintiff's intestate. Plachetko plaintiff's intestate, was one of about 80 men working for defendant in the repair of cars at its repair yard in St Paul. This yard consisted of three parallel tracks, holding about 40 cars each when spaced a distance of 5 to 6 feet apart. The track nearest the river was known as number 1, the next number 2, and the next number 3. The distance between numbers 1 and 2 was about 18 feet, and between 2 and 3 about 14 feet. This yard was protected from outside interference by a danger signal and a derail device on the lead track. When the men had repaired a desired number of cars a locomotive and train crew were sent into the yard to pull them out, and to set in and space others needing repair. It was the aim to have this moving done during the noon hour when the repairers were at lunch, but at times this work could not be finished within the half hour or hour allotted for lunch. On March 4, 1916, while the repairers were eating their lunch in a shanty located about the middle of this yard, the train crew came in with a locomotive and pulled the repaired cars on track 3, and were finishing placing cars needing repairs back onto that track, when the men returned from lunch. Then the locomotive backed out onto the lead and came in on track 2. The foreman for the repair crew and one or two assistants meanwhile were passing up and down both sides of the 12 or 14 cars to be moved on track 2, and calling out the customary warning to the men that track 2 was to be pulled. The testimony leaves no doubt that this warning was given within 3 or 4 feet of Plachetko, who had set down his tool box beside a car just set in on track 3 and was standing near by. He had evidently selected that car as the one upon which to work. The men usually worked in pairs. Plachetko's partner on coming back from lunch had stepped into a box car on track 1 to show the man working thereon how to proceed. When the warning had been called out, and one of the train crew had passed to the further end of the cars to be pulled for the purpose of seeing that the couplers were in...
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