Schendel v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 11 December 1925
• Docket Number: No. 24825.,24825.
• Citation: 165 Minn. 223,206 N.W. 436
• Court: Minnesota Supreme Court
• Parties: SCHENDEL v. CHICAGO, M. & ST. P. RY. CO.

206 N.W. 436

165 Minn. 223

SCHENDEL v. CHICAGO, M. & ST. P. RY. CO.

No. 24825.

Supreme Court of Minnesota.

December 11, 1925.

Appeal from District Court, Swift County; Harold Baker, Judge.

Action by A. D. Schendel, as special administrator of the estate of Charles Hilt, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff, and from an order denying defendant's alternative motion for judgment or for a new trial, defendant appeals. Reversed for a new trial.

F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, Daly & Barnard, of Renville, and Bert O. Loe, of Granite Falls, for appellant.

Paul D. Stratton, of Granite Falls, and Davis & Michel, of Minneapolis, for respondent.

QUINN, J.

This is an action by a special administrator to recover damages for the wrongful death of Charles Hilt, plaintiff's intestate, for the benefit of his surviving widow and 3 minor children. The cause of action is based upon a violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.). Both the decedent and the defendant were engaged in interstate commerce at the time of the accident complained of. There was a verdict in favor of plaintiff of $24,000. The appeal is from an order denying defendant's alternative motion for judgment or for a new trial.

Decedent was 34 years of age. He was in the employ of the defendant as a switchman at its yards in Janesville, Wis., in February, 1923. He was a member of a switching crew composed of a foreman, 2 switchmen, an engineer, and a fireman. The tracks in that yard extend in an easterly and westerly direction. Just before the accident, the switch engine was on the main track, facing to the east and coupled on to the west end of a string of 12 freight cars, which was about to be switched. To the west of the point where the engine and string of cars were was a passing track, and to the north of the passing track was the Mineral Point main track, both parallel with the main track. Branching from the Mineral Point track was track No. 5, and a little farther west, branching from the same track, was the repair track.

The second, third, and fourth cars from the east end of the string were "bad order cars," of which the most westerly one was a Chicago, Burlington & Quincy gondola car. Immediately to the west of the gondola car, and coupled to it, was a Great Northern box car which was in good order. It was the purpose of the crew, in switching the string of cars, to place the most easterly one on the transfer track, to place the three "bad order cars" on the repair track where they could be handled while being repaired, and to place the balance of the string on track No. 5. To accomplish this purpose, the engine pulled a considerable distance west on the main track, taking the entire string with it, then stopped and switched over on to the Mineral Point track, then pushed the string east on that track past both the repair track and track No. 5, and placed the most easterly car on the string on the transfer track; then pushed the string farther east on the Mineral Point track to a point at or near where the accident occurred, for the purpose of cutting off the "bad order cars" and leaving them on that track while the engine placed the balance of the string on track No. 5. The engine was then to return, couple on to the three "bad order cars," and place them on the repair track.

While the engine was pushing the string east on the Mineral Point track, Switchman Frank E. Swan was riding on top about midway between the engine and the gondola car. He was the only person, seeing the movement of the train at the time of the accident, who testified as a witness at the trial. He was called by the plaintiff and testified, in effect, that he was riding on the fourth or fifth car from the engine; that it was about 2 o'clock in the morning; that they were about to stop and cut off the 3 "bad order cars" and leave them on the Mineral Point track while the engine took the remainder of the string to track No. 5; that, as the string came to a stop, decedent approached the ends of the gondola and Great Northern cars, from the north, with his lantern; that decedent was the field switchman, and, as such, it was his duty to make the uncoupling; that, as the lantern reached the end of the cars, he saw it raise up about 4 or 5 feet, as though the man carrying it was climbing up into the stirrup, when the light disappeared from his sight; that the cars were standing still at the time the light passed from his view; that, very shortly thereafter, there was a stop signal; that he then went down to the gondola car and that decedent's body lay midway between the rails, under the middle of the gondola car, with his head to the south and his legs across the north rail; that he was dead, and there was blood on the wheels of the gondola car and also upon the wheels of the Great Northern car, and that they immediately notified the coroner; that the uncoupling had not been effected.

The gondola car was an open flat car, with sides about one-half the height of a box car, of all steel construction, such as soft coal is usually hauled in. There was a full length ladder and a stirrup on the north side of the car, at the westerly end, where the uncoupling lever was. This car was in bad order, in that a piece of iron, called an S, was absent from the coupling device at its westerly end, so that the car could not be uncoupled from the Great Northern car by use of the uncoupling lever thereon.

The uncoupling lever on the Great Northern car was on the south side, at the corner next to the gondola car. It was in good condition so that the uncoupling of the two cars could be effected from the south side by use of that lever. There was a full length ladder and a stirrup on the south front corner where the lever was located. One purpose of the ladders and stirrups near the lever was to enable brakemen and switchmen to pass from one side of the train to the other while the cars are in motion.

It is alleged in the complaint, in effect, that, at the time of and previous to the accident, the defendant, negligently and contrary to the laws of the United States, used the car with the coupling in a defective and inoperative condition; that the car could not, because of such defective condition, be uncoupled from another to which it was coupled by use of the lever and without the necessity of the operator going between the ends of such cars; that, at the time of the accident, it became and was the duty of the decedent to uncouple the gondola car from the one next west of it to which it was coupled; and that, because of the defective condition of such apparatus, decedent could not uncouple the same by use of the lever.

The complaint then charges that, because of the defective coupling apparatus on the gondola car, decedent went between the end of that car and the adjoining Great Northern car to effect the uncoupling, and that, while attempting to make such uncoupling and while so between such cars, he was caused to be caught in a frog knocked to the ground by the moving cars, and run over. If the evidence now before us is sufficient to sustain these allegations, the verdict is right and should stand. In the brief of plaintiff's counsel, considerable space is given to testimony had on a former trial; but we cannot, of course, take into consideration any fact disclosed in that record. It must be understood that, when we said upon that appeal (158 Minn. 378, 197 N. W. 744) that it might be found that Hilt went between the cars to lift the pin by hand, we were speaking of the evidence contained in that record.

The record here is most meager and unsatisfactory. The only witness called, who saw anything of the accident, was the switchman Swan. Defendant called no witnesses. The members of the switching crew were present at the trial, as counsel for defendant had promised opposing counsel they would be. According to the record, decedent was last seen approaching the standing cars from the north side, and, when he reached the northwest corner of the gondola car, his lantern went up 4 or 5 feet as though he was going up into the stirrup on that corner. Immediately afterwards "a stop signal was given," and directly thereafter decendent's lifeless body was found between the rails, under about the middle of the gondola car. It appears that there was a "block or beam" extending across the front of the gondola car, outside of the box, and about the same height as the coupler. There is no testimony that the cars moved after decedent got to them. It is obvious that they did move and that they must have moved first easterly and then westerly for there was blood on the east trucks of the Great Northern car and on the west trucks of the gondola. On whose signal the cars were moved, or on whose signal they were stopped, is not shown.

There can be no question that the defective uncoupling appliance on the gondola car, and the use of the car with it thereon, constituted a violation of the federal Safety Appliance Act and established the negligence of the defendant as a matter...