Schantz v. N. Pac. Ry. Co.

• Decision Date: 06 June 1919
• Citation: 173 N.W. 556,42 N.D. 377
• Parties: SCHANTZ v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

42 N.D. 377

173 N.W. 556

SCHANTZ

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

April 25, 1919.

Dissenting Opinion May 31, 1919.

Rehearing Denied June 6, 1919.

Syllabus by the Court.

An employé of an interstate railway carrier, engaged in working as a section man upon the railroad of such carrier, who is injured returning from his work by attempting to board a moving freight train, pursuant to directions or orders of the section foreman so to do, is engaged in interstate commerce within the meaning of the Employers' Liability Act of Commerce, of April 22,,1908 (U. S. Comp. St. §§ 8657-8665).

In an action for personal injuries under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), where the deceased, a boy 16 years of age, while employed as a section man upon the railway of the carrier, was injured by attempting to board a moving freight train upon his return from work, it is held, under the evidence, that the question of the negligence of the carrier in directing or ordering, through its section foreman, the deceased so to do, and, of the contributory negligence of, and the assumption of the risk by, the deceased, were questions of fact for the jury.

In such action, the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) applying under both the pleadings and the evidence, superseded state statutes.

Additional Syllabus by Editorial Staff.

A motion by defendant for a directed verdict at the close of plaintiff's case was in the nature of a demurrer to the evidence, and hence all fair inferences from the evidence must be drawn in favor of the party against whom such verdict was directed.

Where honest and intelligent men may fairly differ in their conclusions from the evidence upon any material fact in the case, it is error to withdraw the evidence from the jury.

Appeal from District Court, Morton County; Crawford, Judge.

Action by Kasper Schantz, as administrator of the estate of Raphael Schantz, deceased, against the Northern Pacific Railway Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed, and a new trial granted.

See, also, 167 N. W. 370.

Christiansen, C. J., and Robinson, J., dissenting.Jacobsen & Murray, of Mott, for appellant.

Watson, Young & Conmy, of Fargo, for respondent.

BRONSON, J.

This appeal is taken from a judgment entered upon a direct verdict ordered at the close of plaintiff's case. Raphael Schantz, the deceased, a boy 16 years of age was seriously injured in the month of April, 1916, while attempting to board a moving freight train. Thereafter he died in a hospital on August 21, 1916. This action is brought by the administrator of the deceased under the federal Employers' Liability Act to recover damages due to the alleged negligence of the railway company. On the day of the injury the deceased was in the employ of the company as a section hand with a crew working on the north branch of the defendant railway out of Mandan. He had been so working as a section hand for some six months. Prior to that time the boy had been raised and had worked upon a farm. On the day in question the crew, consisting of seven men, went out to work upon a gasoline speeder provided by the defendant, under the direction and supervision of a section foreman named Peter Baron. On that day they were repairing tracks and putting in new ties on such railway near Harmon; some 10 miles distant from Mandan. About 4:30 p. m. they were ready to go to Mandan and to start out on the speeder, but it was not working well, and then the freight train came along. The crucial question in this case is whether the directions or orders of this section foreman, then 21 years of age, given at this time to this boy, the deceased, about boarding this freight train, under the circumstances raised any issue of negligence imputable to the defendant. The section foreman was called by the plaintiff for cross-examination under the statute. It appeared that he was not then in the employ of the defendant, so the plaintiff called him as his witness. He testified as follows concerning this matter:

“He had been acting as section foreman for about a month. The boy said, ‘we will have to catch the train or else we have to walk in.’ I said, ‘If you want to catch the train it will be safe to get on.’ The Hartner boy came up and said, ‘It is safe to get on.’ I told Schantz to get on, and told the rest of the crew to get on if it comes along.”

On cross-examination he testified:

“Hartner came along and asked if the train is safe to catch. I said, ‘All right; if you can catch it, you can get on.’ Hartner said that, ‘The train is safe to catch.’ I said ‘All right; you can catch on when it comes along.’ I got up and looked, and it was running along pretty slow. I told Hartner to get on if it was safe. I told Hartner not to get on the train unless it stopped. I told him that first, and then he came along and said, ‘It is safe to get on.’ I said, ‘All right, if it is safe to get on, you can get on.’ Hartner is the one that came up to me and suggested catching on the train. When I told Hartner the first time not to get on that train unless it stopped, I don't know if all the boys heard it. Hartner said, ‘It is safe to get on.’ I said, ‘All right; if it is safe, you get on;’ and then they went over on the other side. I said, ‘If you think it is safe to get on, go ahead and get on.’ Then they went over to the other side of the depot. I can stop a freight train if I want to. I had the right to stop them. I know they used to stop a freight train for the purpose of getting a ride into town. I used to do it. If I would have to stop them, if they had not come along slow, I would have stopped them and put the boys on. Nobody told me that I could stop a freight train. I know that myself. They always used to do that. In a deposition given on September 22, 1916, at Mandan before a justice of the peace, I testified, ‘The speeder wasn't working very good, and I told them to get on the train if it stops,’ and that after I told them that the boys went right across. I told them that the first time, then Hartner came along and said, ‘It is safe to get on,’ and then I said, ‘If it is safe, get on.’ In my deposition I told them not to get on if it did not stop. I told them that the first time. When I told them that I thought the train might possibly stop at the switch and they could get on. It sometimes stopped there. The men did not go right over at that time. They went over after I told them to get on.”

On redirect examination he testified positively that before the deceased started to go over to get on the train he told him, “if it is safe to get on,” he could get on; that the first time he said, “‘if it stops, get on,’ but after Hartner came along and said it was safe to get on, you don't have to stop it, I told the boys to get on.” On recross-examination he again testified that he first told the boys not to get on the train unless it stopped, and that after Hartner came over and said it was safe to get on he told him to catch on; that he talked with Hartner, not with Schantz; that Schantz was close to him. Then afterwards he testifies that Schantz and some others were about 200 feet away. Then the court remarked that the witness should have an interpreter, and asked the witness if he understood the question, whereupon he said he understood a few of them, but they were speaking them all too fast. The deposition of the witness so taken was not introduced.

Adam Hartner, aged 19 years, who was working at the time in this crew, testified for the plaintiff in a deposition as follows:

“That the section foreman told us we had to walk in or get on the freight train if she slows up. That, when he said that the freight train was about one-half mile away, and then running about 13 miles per hour. That he told the fellows where to catch the train. That the reason he told us to go up by the switch was because the train slows up there, and he told us it would. When the train came there it was running about 8 to 10 miles per hour.”

On cross-examination this witness said that the boss first suggested catching the freight and that he said, “If she slows up, you catch her.”

This testimony has been set forth considerably at length for the reason that it is deemed proper so to do in order to demonstrate the error of the trial court in directing a verdict for the defendant. In this record it clearly appears that there is testimony to the effect that this section foreman, had authority, so claimed at least, to stop this train; that if it had not come along slow he would have stopped it and put the boys on; that this crew were told to get on this train, by this section foreman, whether the testimony of one witness be taken, if it slowed up or the other, if it was safe. In either event there is testimony of an assurance or a direction to get on this freight train.

The testimony of the witness Hartner is not contradictory. There are contradictions in the testimony of the witness Baron, but they are capable of being harmonized when it is considered that such witness insists that he made two different statements. One at first to the effect that the crew should not get on unless the train stopped, and the subsequent statement made after Hartner reported to him that it was safe where he directed the crew to get on. It is not to be expected that these witnesses could repeat word for word verbatim everything that was said about this matter. These witnesses were subjected to severe cross-examination attacking the veracity of their testimony and their motives and interest in connection with other alleged statements by them made. Both of these witnesses were practically boys. One of them had never been in court before. The court indicated that one of them should have had an interpreter. Surely it was the province of the jury, not the court, to weigh and determine as a matter of fact the truth or falsity of the same. It...