Risberg v. Duluth, M. & I. R. Ry. Co.

• Decision Date: 22 March 1951
• Docket Number: No. 35263,35263
• Citation: 47 N.W.2d 113,233 Minn. 396
• Parties: RISBERG v. DULUTH, MISSABE & IRON RANGE RY. CO.
• Court: Minnesota Supreme Court

Page 113

47 N.W.2d 113

233 Minn. 396

RISBERG v. DULUTH, MISSABE & IRON RANGE RY. CO.

No. 35263.

Supreme Court of Minnesota.

March 22, 1951.

Syllabus by the Court

1. Where a railway flatcar owned by defendant railway company, an interstate carrier, at the time of the accident to plaintiff, was being used and hauled by a quarry

company's crew and equipment on the system of tracks owned by the quarry company, the car having been in the possession of the quarry company for two days, during which time it had been loaded with large cover rock, and where plaintiff, an employe of the quarry company, was injured while using a claimed defective brake on defendant's car, it is Held, in an action by the injured employe of the quarry company against the railroad company, that the Federal Safety Appliance Act has no application.

2. It is further held that the Res ipsa loquitur doctrine, under the facts of the case, has no application.

Louisell & Louisell, Duluth, David W. Louisell, Minneapolis, of counsel, for appellant.

W. O. Bissonett, William H. Crago, Jr., Duluth, for respondent.

MAGNEY, Justice.

The Zenith Dredge Company owns and operates a large rock quarry near the Duluth steel plant district. A network of railroad tracks is laid out on its property. The total length of these tracks is about three miles. This system connects up with the tracks of the Duluth, Missabe & Iron Range Railway Company, the defendant herein, an interstate carrier, at a station called Brewer. The quarry is equipped with a steam locomotive and a self-propelling diesel-powered locomotive crane. The crane handles the cars in the area within the pit, while the steam locomotive handles the cars between the lower yard and the pit. The crane is so constructed that it travels on steel rails under its own power. It is equipped with a coupling so that it can move railroad cars as required. Its boom is 55 or 60 feet long with cables running through it. At the end of the cables is a grapple clam with four prongs that close like fingers of the hand and is able to pick up pieces of rock weighing several tons. The clam is operated from the cab of the crane.

All the cars used on the tracks of the quarry company are moved by the locomotive or the crane, or by gravity. The empty cars are delivered by defendant to the tracks of the quarry company. After the cars have been loaded with rock, they are taken down to the lower yard by the quarry company's locomotive and there turned over to defendant for ultimate delivery. At the time of the accident to plaintiff, an employe of the quarry company, the company was supplying rock of various sizes for the construction of a breakwater at Two Harbors, Minnesota. Three sizes of rock were furnished--skip rock, which consists of small rocks up to one ton, grapple rock, 1 to 5 tons, and cover rock, 5 to 30 tons. The skip rock was loaded in a metal skip or bucket, 3 or 4 of which were put on each car. The loaded cars of rock were being transported by defendant over a route entirely within the state of Minnesota on its own tracks and, for a short distance, on the tracks of the Northern Pacific Railway Company. One hundred fifty 30- and 40-ton flatcars about 40 feet long, specially equipped for the purpose, were used by defendant in this rock-hauling enterprise. These cars had special beams or timbers along the sides and ends which were 12 inches high and 6 inches wide. At the brake end of the car, the beam was set in from the edge about 1 foot, making a sort of brake platform. While the cars were in the possession of the quarry company, it had at times made some repairs on brake shafts, chains, and air hose. No repairs were ever made on brake shoes. Plaintiff's counsel made an offer of proof that at times the brakes on some of these cars had failed to work. There was no direct evidence introduced to show the cause of such brake failures, but there was testimony to the effect that small rocks, snow, and ice sometimes accumulated outside the beam and the brake ledge or platform and around the brake staff.

Among the tracks in the quarry pit itself was one designated as the north track and anothers as the south track. They were parallel to each other.

On December 10, 1947, defendant delivered a number of its empty 30- and 40-ton flatcars to the quarry. One of these cars was the 30-ton car No. 6286. At four o'clock in the afternoon of December 12, 1947, a crew composed of Paul Long, crane operator, Lloyd Sunnarborg, oiler, and Robert Risberg, brakeman, plaintiff herein, arrived at the quarry. Their shift was from 4 to 12. The day crew had left early because of snowy weather. When this crew went to work, there were three cars of skip rock spotted on the west end of the above-mentioned south track. There were 17 empty cars on the north track. In loading the cars that afternoon and evening, Long would take three or four empties, spot them on the north track with his crane, then run up to the east switch and back onto the south track, where he would proceed to load these spotted cars with grapple rock. After these cars were loaded, the crane would move back to the east switch, return over the north track, couple onto the loaded cars, push them back against the empties, hook on three or four empties, and pull them into position for loading. Then the loaded cars would be uncoupled and pulled over the east switch and pushed back along the south track until they coupled onto the loaded cars already spotted on the south track. The crane would then return to load some more cars with grapple rock. The evidence clearly establishes that this operation was carried on until 15 cars had been loaded and spotted on the west end of the south track. The movement of all of these cars had been handled with the crane.

Two empty cars remained. These were pushed into a spur to the north of the so-called north track. This spur track runs upgrade, and when the cars had been pushed in on this track the brake was set on the lead car. After these cars had been spotted on the spur track, Long proceeded to load the car nearest the crane. After it had been loaded with cover rock, four or five to the load, the crane coupled onto the car and moved it about 6 or 8 feet beyond the east switch. Plaintiff rode on the west end of the car, and when it had passed over the switch he went over and turned the switch. The track to the east of the switch point had over a 3 percent grade and the track to the west a 1.92 percent grade. In order to pull or free the pin of the drawbar because of the gravity pull on the grade, the crane put on enough power to give slack to the coupling. Sunnarborg pulled the pin. Plaintiff got on at the west end while the car was standing still. He had a brake club or pick handle, 30 to 36 inches long, in his hand when he climbed up on the car. He placed one foot inside the body of the car and the other on the brake platform, straddling the timber. He then proceeded to take out the slack by hand. After that, he put the brake club through the brake wheel to pull up the notches on the rachet wheel at the bottom of the brake so as to have the dog hold the brake in position, thus preventing slipping. By the use of the brake club, he ran up four or five notches, and was still pulling the rod to get another notch or two. The car kept going faster, gaining speed all the way. The brake had no effect on the car. Plaintiff saw nothing wrong with the brake wheel or brake staff. Ordinarily, by the use of the brake club, cars would be taken down at the speed of a slow walk. Plaintiff did not remember how many feet the car had gone by the time he had taken up the slack. It had not gone a car length before he inserted the brake club between the spokes. The car ran about 380 feet when it struck the other loaded cars. His leg was caught between a cover rock and the timber and badly injured. Cover rocks were always loaded three feet from the timber so as to give clearance for the men operating the brakes. Probably the rock nearest the timber had pitched forward because of the jolt. After the accident, the distance from the rock to the timber was about 8 inches, and a dent in the timber indicated that the rock had struck it. The car on which plaintiff was riding left the quarry on December 13, 1947.

At the time of the accident, car No. 6286, the one in question, had a gross weight of 108,400 pounds. The tare weight was 41,200 pounds, and the net weight 67,200 pounds. It was overloaded to the extent of 5,400 pounds. Cars overloaded more than five tons would not be permitted to leave the quarry company's property.

1. Upon the above facts, perhaps unnecessarily detailed, the court directed a verdict for defendant on the ground that the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq., did not apply and that the facts failed to spell out a common-law liability. The Federal Safety Appliance Act provides: 'It shall be unlawful for any common carrier (engaged in interstate commerce by railroad) * * * to haul, or permit to be hauled or used on its line, any car * * * not equipped with appliances provided for * * * to wit: All cars must be equipped with secure sill steps and efficient hand brakes; * * *.' 45 U.S.C.A. § 11.

No showing of due care can defeat an action based upon violation of the act if such violation is the proximate cause of the injury. O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187; Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236; Affolder v. New York, C. & St. L.R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683.

In determining whether the above-cited section of the Federal Safety Appliance Act applies to this case, the following pertinent facts must be considered:

The car with the claimed defective brake was owned by defendant. It was being 'hauled' and 'used' at the time of the accident on the tracks of the Zenith Dredge Company by the dredge company's crew...