Roach v. Great N. Ry. Co.

• Citation: 133 Minn. 257,158 N.W. 232
• Decision Date: 09 June 1916
• Docket Number: No. 19806 [185].,19806 [185].
• Parties: ROACH v. GREAT NORTHERN RY. CO.
• Court: Supreme Court of Minnesota (US)

133 Minn. 257

158 N.W. 232

ROACH

v.GREAT NORTHERN RY. CO.

No. 19806 [185].

Supreme Court of Minnesota.

June 9, 1916.

Appeal from District Court, Lyon County; I. M. Olsen, Judge.

Action by Anna Roach, as administratrix, against the Great Northern Railway Company. From an order denying an alternative motion for judgment or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

The evidence justified the finding of the jury that the defendant was negligent in using on a switching engine in its railroad yards a 1,500 candle power electric headlight such as is used on engines in road service.

Under the evidence the plaintiff's intestate did not as a matter of law assume the risk of working about such a headlight.

The court did not err in receiving in evidence as a part of the res gestae statements made by the deceased at a time not precisely shown, but perhaps as long as 45 minutes after the accident, the deceased at the time suffering intense pain, and having so suffered since the accident, there being some attendant excitement, and the circumstances on the whole tending to indicate an absence of fabrication and to accredit the statements as trustworthy. M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

Tom Davis & Ernest A. Michel, of Marshall, for respondent.

DIBELL, C.

The plaintiff's intestate was killed in the railroad yards of the defendant at Willmar. The jury found that he was at the time employed by the defendant in interstate commerce. This finding is not challenged. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

1. The deceased was working as a switchman's helper. He was run over and killed by a car shunted onto a side track by a switching engine working on the lead. This switching engine was equipped with a road engine electric carbon headlight of $1,500 candle power and used a reflector. The statute requires every locomotive operated in road service to be equipped with ‘an electric or other headlight of at least fifteen hundred candle power, measured without the aid of a reflector,’ and requires on ‘every locomotive engine regularly used in switching cars or trains, a headlight of at least fifty candle power measured without the aid of a reflector.’ G. S. 1913, § 4421. Of course this statute does not make the use of a 1,500 candle power light on switching engines unlawful or negligent. It recognizes the difference between the needs of a road operation and a switching operation. The negligence alleged is the use of a headlight of 1,500 candle power with a reflector. Whether such use constituted negligence was submitted to the jury. The evidence is that such a headlight blinds and dazzles the eye so that one is unable to see objects distinctly or measure distances accurately. This is common knowledge. Switchmen work on and about the cars and engines in the yard and must be able to see clearly and to measure distances accurately. We are of the opinion that the jury's finding of negligence is supported by the evidence.

[2] 2. The deceased had worked in the yards and about such headlights for a considerable time. The defendant claims that as a matter of law he assumed the risk of their use. The question of the assumption of risks was submitted to the jury and its finding negatived such assumption. While the deceased must have been aware of the kind of headlight used or at least that it was a bright, strong light, we are not prepared to say that as a matter of law he appreciated the danger and assumed the risk. The question was for the jury.

[3] 3. The accident to the deceased resulted in the immediate loss of one arm and one leg. He lived about a week. To a follow workmen who was the first one to him a few moments after the accident he said, in response to an inquiry, using the language of the witness:

‘He says that-the car going in on 5 got him; and I says, * * * ‘You knew the car was going there, didn't you?’ and he says, ‘Well,’ he says, he didn't see the car or couldn't see the car, and that was all he said; and he says, ‘Don't ask me any more, but go and get me a doctor.’'

No question is made as to the admissibility of this testimony. It was clearly admissible. The deceased was taken in the caboose to the depot, and was carried from there to the hospital. He reached there perhaps 15 minutes after the accident. The witness Walker, an old-time friend, reached the hospital about the same time and testified as to what the deceased said. This testimony is the subject of exception. It is claimed by the plaintiff to be a part of the res gestae. The exact time of the conversation is not shown and no effort was made to fix it precisely. It is fairly to be inferred that it occurred within 30 minutes after the deceased reached the hospital-perhaps considerably earlier. The deceased was suffering intense pain and was crying for relief. He was suffering from the shock incident to his injury and there was some attendant excitement. Walker, testifying to the conversation, said:

‘He said the light was so...