Popplar v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company
| Decision Date | 23 May 1913 |
| Docket Number | 17,918 -- (72) |
| Citation | 141 N.W. 798,121 Minn. 413 |
| Parties | MICHAEL A. POPPLAR v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by the administrator of the estate of Richard S. Popplar, deceased, to recover $ 25,000 for the wrongful death of his intestate. The issues submitted to the jury are given in the second paragraph of the opinion. The case was tried before Dickson, J., who, when plaintiff rested, denied defendant's motion to dismiss the action and, at the close of the testimony defendant's motion to direct a verdict. The jury returned a verdict of $ 2,850 in favor of plaintiff. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Evidence of defective coupler -- safety appliance statute.
1. The Federal Safety Appliance Act imposes an absolute duty upon a railroad, on a highway of interstate commerce, to have couplers in such condition at all times that, when operated in an ordinary and reasonable manner, the cars can be uncoupled without requiring the operator to go between the cars. In this case the operator, in attempting to lift the pin to open a coupler, "jerked on it and he pulled up at it," three or four times but it would not uncouple. Another brakeman testified that he soon thereafter tried to lift the pin but could not. Defendant's witnesses admitted that it worked stiff. This was sufficient evidence to sustain a finding of the jury that the coupler was not such as was required by law.
Contributory negligence.
2. Where in switching operations in a large railroad yard a car is being "kicked," and the usual method of uncoupling is to pull the pin while the cars are in motion if the pin lifter on an automatic coupler refuses to work, the act of the brakeman, in going between the cars while in motion to make the uncoupling, is not conclusive of negligence on his part, where the only way to open the coupler without so doing is to stop the train, abandon the "kick" and walk around to a lever on the other side of the train.
Same -- violation of company rule.
3. The violation by an employee of a rule of the employer made for the protection of employees, is ordinarily held to constitute negligence per se. But this doctrine is not an absolute one. It yields to practical necessity. If the employer has failed to comply with some requirement of law, and such failure makes it impossible for the employee to do his work in the usual way, this may excuse him if he follows a method of doing the work which is the only method reasonably practicable under the circumstances or is a method which a reasonably prudent man would follow.
Construction of rule -- question for jury.
4. In this case a rule of defendant forbade brakemen going in between moving cars. The rule must be construed in connection with the statute. The course to be followed by a brakeman, when an automatic coupler refuses to work, is not pointed out in any rule. The only way to uncouple without going between cars was to stop the train and walk around to the other side. The conductor on the train, called by defendant, testified that it was not necessary for the brakeman to do this but that he might go between the cars while standing and open the coupler. This was one of the things the statute was designed to avoid. Under all the circumstances of the case, the question whether disobedience of the rule was in this case negligence, was one of fact for the jury.
J. L. Erdall and M. D. Munn, for appellant.
Samuel A. Anderson and A. F. Storey, for respondent.
Richard Popplar was a rear brakeman in a train crew of defendant. On the morning of September 6, 1909, he was engaged with his crew in defendant's railway yard at Mahnomen, Minnesota, in making up a train. It is admitted that defendant's road at this point is a highway of interstate commerce, but there is no evidence that Popplar was at the time employed in interstate traffic. At the time in question the train crew was engaged in "kicking" a car onto a side track. The car to be "kicked" was at the rear end of a short string of cars attached to the engine. The train was backed onto the side track; when it arrived at such point that the car to be "kicked" would of its own momentum run to the desired place, Popplar was to give a stop signal to the head brakeman, who was to transmit it to the engineer, and the engineer was to stop the engine. As the train slowed down, the slack would run out of the couplings and it would then be impossible to uncouple this car. It was, accordingly, part of the process of "kicking" that Popplar make the uncoupling before the engine slackened speed. This he undertook to do. Both cars were equipped with automatic couplers. At each coupling there were two pins, one on each car. The pulling of either would uncouple the cars. Each car was equipped with a pinlifter at each coupling; as the cars stood end to end the pinlifters were on opposite sides, and they were so designed that, when in order, the brakemen could uncouple from either side without going between the cars. Popplar moved along on the ground beside the cars. At the proper time he gave the stop signal and then immediately undertook to lift the coupling pin operated by the lever on his side. He did not succeed in doing so. He then stepped between the cars, and with his hand pulled the other pin which was operated by the lever on the opposite side. While doing so he was run over and killed. The train was running about four miles an hour.
Plaintiff charges liability on the ground that Popplar's death was caused by the failure of defendant to have this car equipped with couplers which could be uncoupled without the necessity of men going between the ends of the cars, as required by the Federal Safety Appliance Act. [1] Defendant denies this charge and further contends that deceased was guilty of contributory negligence that bars recovery. The court submitted both issues to the jury. The jury found for plaintiff. Defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. Both motions were denied and defendant appeals.
1. The evidence is sufficient to sustain the finding that this coupling did not comply with the Federal Safety Appliance Act. This court has held, following the decisions of the Supreme Court of the United States, that this statute imposes an absolute duty upon a railroad, on a highway of interstate commerce, to have couplers in such condition at all times, that, when operated in an ordinary and reasonable manner, the cars can be uncoupled without requiring the operator to go between the cars. Burho v. Minneapolis & St. L. R. Co., 121 Minn. 326, 141 N.W. 300, and cases there cited.
The only eye witnesses to this accident testified that Popplar tried three or four times to pull this pin with the lifter, that he "jerked on it and he pulled up at it" but it would not uncouple. The same witness testified that, after the accident, he himself tried to lift the pin on this car and couldn't do it, that it came up half way and blocked. One of the defendant's witnesses, the conductor, testified that this pin could be worked but that it "worked stiff," and that he would have reported it as "a bad coupler" had it come to his attention. The jury might fairly find from this evidence that the coupler was not such as was required by law.
2. Defendant contends that the evidence is conclusive that Popplar was guilty of contributory negligence. The Safety Appliance Act permits the defense of contributory negligence. The Employers' Liability Act of 1908 [2] amends the Safety Appliance Act so as to abolish this defense when the employee is engaged in interstate commerce; but this is not such a case. We must accordingly determine whether contributory negligence was conclusively established. In our judgment it was not. Defendant's contention is this, that the pin which was operated by the lever on the opposite side of the cars was in proper condition; that Popplar could have made the uncoupling with safety by the use of that lever, and that, under the circumstances, it was contributory negligence as a matter of law to go between the cars while in motion. A rule laid down in some of the Federal courts is invoked to-wit, that the act of Congress contemplates that brakemen should not go between cars, and that where two ways are open to an employee to perform a certain act, one safe, the other unsafe, and the employee adopts the unsafe method, he cannot recover. This rule has been applied to cases similar to this and recovery denied. Perhaps the leading case of this sort is Gilbert v. Burlington, C. R. & N. Ry. Co. (C. C. A. Eighth Circuit) 128 F. 529, 63 C. C. A. 27. Within certain limitations the...
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