Russell v. Minneapolis & St. Louis Railway Company

• Decision Date: 25 June 1884
• Citation: 20 N.W. 147,32 Minn. 230
• Parties: Ralph L. Russell v. Minneapolis & St. Louis Railway Company
• Court: Minnesota Supreme Court

20 N.W. 147

32 Minn. 230

Ralph L. Russell v. Minneapolis & St. Louis Railway Company

Supreme Court of Minnesota

June 25, 1884

Plaintiff brought this action in the district court for Hennepin county, to recover for personal injuries received by him, as brakeman in the employment of defendant, in coupling a car and locomotive tender. At the trial before Lochren, J and a jury the plaintiff had a verdict for $ 10,500. Defendant appeals from an order refusing a new trial. The case is stated in the opinion.

Order affirmed.

J. D Springer, for appellant.

The plaintiff, in entering into the employment of the defendant impliedly contracted (1) that he possessed the ordinary skill and experience of those engaged in the occupation he undertook; (2) that he would exercise ordinary care to protect himself while engaged in that occupation; and (3) that he would assume the risk of all dangers incident to that occupation. Although the defendant may have failed in its duty to furnish proper machinery, yet if the plaintiff knew or had the means of knowing the unsafety of the machinery, but continued to use it without objection or complaint, he assumed the risk of all dangers incident to its use; and the risks incident to the use of the machine became an incident to the occupation in which he was engaged. Wood on Master and Servant, 681-3, 693, 698, 720-2, 746-758, 791, 793; Addison on Torts, 224-5; Wharton on Negligence, § 214; Cooley on Torts, 551-2; Pierce on Railroads, 379-382; Thompson on Negligence, 1008, 1009, 1015, 1016; Perigo v. C., R.I. & P. R. Co., 52 Iowa 276. The servant is bound to exercise his own judgment and to see patent defects. He is bound to observe the customary way in which the master carries on the business, and the master is under no greater obligation to care for the servant than the servant is to care for himself.

By the constant use of the engine and the many couplings he must have made to the tender during the two weeks he served as head brakeman, the plaintiff must have acquired knowledge that the tender was not equipped with a goose-neck, nor the draw-bar set out on a block, nor any other means adopted to prevent the tender and the car and coach from coming too closely together. Lumley v. Caswell, 47 Iowa 159; Perigo v. C., R.I. & P. R. Co., 52 Iowa 276.

The plaintiff, in view of his contract that he possessed the requisite skill and experience of a head brakeman on a mixed train, was chargeable with knowledge of the instrumentalities universally or customarily employed to keep the tender and cars from coming too closely together. There was nothing in the draw-bars on the tender and car, or in their appearance, which would justify a man of ordinary common sense, much less one possessed of the skill and experience requisite to that occupation, in thinking that they were intended or would have the effect of keeping the car and tender from coming together. They were intended to hold them together, and not to keep them apart. The lateral motion of the Miller draw-bar (of which respondent had knowledge) and the roundness of both draw-bars, were the most obvious and emphatic warning that could have been given that they were not employed to keep the cars apart; so that a knowledge of the simplest laws of mechanics was all that was required to discover this fact. This the plaintiff was bound to apply. Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212; s. c., 1 Am. & Eng. R. Cas. 101; Hathaway v. Mich. Cent. R. Co., 51 Mich. 253; s. c., 12 Am. & Eng. R. Cas. 249; Toledo, etc., Ry. Co. v. Black, 88 Ill. 112; Indianapolis, etc., R. Co. v. Flanigan, 77 Ill. 365; Chicago, etc., R. Co. v. Clark, 18 Cent. L. J. 170.

The same rule has been applied to train operatives in the following additional cases:

Kelley v. Silver Spring Co., 12 R.I. 112; s. c., 34 Am. Rep. 615; McGlynn v. Brodie, 31 Cal. 376; St. Louis & S. E. Ry. Co. v. Britz, 72 Ill. 256; Chicago & N.W. Ry. Co. v. Donahue, 75 Ill. 106; Toledo, etc., Ry. Co. v. Asbury, 84 Ill. 429; Kroy v. C., R.I. & P. R. Co., 32 Iowa 357; Muldowney v. Ill. Cent. R. Co., 39 Iowa 615; Way v. Ill. Cent. R. Co., 40 Iowa 341; Baldwin v. C., R.I. & P. R. Co., 50 Iowa 680; Wells v. B., C. R. & N. R. Co., 56 Iowa 520; s. c., 2 Am. & Eng. R. Cas. 243; Atchison, etc., R. Co. v. Plunkett, 25 Kansas, 188; s. c., 2 Am. & Eng. R. Cas. 127; Sullivan v. Louisville Bridge Co., 9 Bush. 81; Baltimore & O. Ry. Co. v. Stricker, 51 Md. 47; Sullivan v. India Mfg. Co., 113 Mass. 396; Ladd v. New Bedford R. Co., 119 Mass. 412; Lovejoy v. Boston & L. R. Co., 125 Mass. 79; Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 134; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212; s. c., 1 Am. & Eng. R. Cas. 101; Day v. Toledo, etc., Ry. Co., 42 Mich. 523; s. c., 2 Am. & Eng. R. Cas. 126; McGinnis v. C. S. Bridge Co., 49 Mich. 466; s. c., 8 Am. & Eng. R. Cas. 135; Hathaway v. Michigan Cent. R. Co., 51 Mich. 253; s. c., 12 Am. & Eng. R. Cas. 249; Hughes v. Winona & St. P. R. Co., 27 Minn. 137; Clark v. St. P. & S. C. R. Co., 28 Minn. 128; Morse v. Minn. & St. L. Ry. Co., 30 Minn. 465; Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367; Devitt v. Pacific R. Co., 50 Mo. 302; Hulett v. St. Louis, etc., Ry. Co., 67 Mo. 239; Smith v. St. Louis, etc., Ry. Co., 69 Mo. 32; Cagney v. Hannibal & St. J. R. Co., 69 Mo. 416; Baylor v. Del., L. & W. R. Co., 40 N.J.L. 23; Loonam v. Brockway, 28 How. Pr. 472; Owen v. N.Y. C. R. Co., 1 Lansing, 108; De Graff v. N.Y. C. & H. R. R. Co., 3 T. & C. 255; Haskin v. N.Y. C. & H. R. R. Co., 65 Barb. 129; Gibson v. Erie Ry. Co., 63 N.Y. 449; De Forest v. Jewett, 88 N.Y. 264; Crutchfield v. Richmond & D. R. Co., 78 N.C. 300; Stone v. Oregon City Mfg. Co., 4 Oregon, 52; Pittsburgh & C. R. Co. v. Sentmeyer, 92 Pa. 276; s. c., 5 Am. & Eng. R. Cas. 508; Northern Cent. Ry. Co. v. Husson, 101 Pa. 1; s. c., 12 Am. & Eng. R. Cas. 241; Kelley v. Chic., M. & St. P. Ry. Co., 53 Wis. 74; Howland v. Milwaukee, etc., Ry. Co., 54 Wis. 226; Naylor v. Chic. & N.W. Ry. Co., 53 Wis. 661; Dillon v. Union Pac. R. Co., 3 Dillon, 319.

C. K. Davis and A. B. Jackson, for respondent.

OPINION

Mitchell, J.

The injury complained of was sustained by plaintiff while in the discharge of his duties as brakeman on a "mixed" train on defendant's road, while coupling a "combination" or baggage car to the tender of a freight engine. The baggage car was equipped with a "Miller" coupler, while the engine had only an ordinary coupling, such as is used on freight cars. The Miller coupler, which has a certain amount of lateral motion, slipped past the draw-head on the tender, and thus permitted the two cars to come so close together as to crush the plaintiff, who was standing between them in the act of making the coupling. The evidence shows that when those two kinds of coupling are thus used together, owing to this lateral motion of the Miller coupler, the ends of the two are liable, under certain circumstances, to slip past each other, and thus leave insufficient room between cars for a brakeman to stand, unless the tender is supplied with a "goose-neck," wooden buffers, or some other such arrangement to keep the cars apart. In this case the tender was not supplied with anything of the kind, and hence the injury complained of. That defendant was guilty of negligence in supplying its servants with such unsafe instrumentalities is very clear, and indeed is not seriously controverted. But defendant's contention is that plaintiff knew, or had the means of knowing, the unsafe character of these couplings, and, having continued their use without objection, he assumed all the risks incident thereto. We shall not here enter into any general discussion of the question when and under what circumstances a servant takes upon himself risks incident to the use of unsafe machinery, by continuing to use it without objection after knowledge of its defective character. We simply say that it is not enough that the servant knew or ought to have known the actual character and condition of the defective instrumentalities furnished for his use. He must also have understood, or by the exercise of ordinary observation ought to have understood, the risks to which he is exposed by their use.

To this rule this court has always strictly adhered. Clark v. St. P. & S. C. R. Co., 28 Minn. 128, 9 N.W. 581. In some cases, as in the double deadwood cases cited by defendant, (Michigan Cent. R. Co. v Smithson, 45 Mich. 212, 7 N.W. 791; s. c., 1 Am. & Eng. R. Cas. 101; Hathaway v. Mich. Cent. R. Co. 51 Mich. 253, 16 N.W. 634; s. c., 12 Am. & Eng. R. Cas. 249; Toledo, etc., Ry. Co. v. Black, 88 Ill. 112; Indianapolis, etc., R. Co. v. Flanigan, 77 Ill. 365;) the risk is obvious on inspection of the thing itself. In other cases the servant may know the character and condition of the instrumentality which he is called upon to use, and yet not have the means of knowing the nature or extent of the risks to which its use will expose him. The master and servant do not necessarily stand upon an equal footing in this regard. The servant, although a man of ordinary prudence as well as experience, may be quite incapable of appreciating the degree of risk involved in the use of a certain kind of machinery, while the master may be, and generally is. It is the master's duty to inform himself in that regard, for on him is involved the duty of exercising ordinary care to supply safe...