Slette v. Great N. Ry. Co.

• Decision Date: 22 May 1893
• Citation: 53 Minn. 341,55 N.W. 137
• Parties: SLETTE v GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

53 Minn. 341

55 N.W. 137

SLETTEvGREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

May 22, 1893.

(Syllabus by the Court.)

1. Evidence showing the running of a freight train at excessive speed held to justify the conclusion that it was negligence and a proximate cause of a collision with a hand car running over the road in advance of the train.

2. Evidence held to justify the conclusion that the foreman of the hand car was negligent in not having stopped and taken the car off the track, he knowing that the train was following; also that the plaintiff, a section man on the car, under the direction of the foreman, might be deemed not negligent, even though the foreman was negligent.

3. A verdict for $4,100 for a broken leg held excessive.

Appeal from district court, Yellow Medicine county; Powers, Judge.

Action for personal injuries by Hans P. Slette against the Great Northern Railway Company. Plaintiff had judgment, and from an order denying a new trial, defendant appeals. Reversed.

M. D. Grover and Cyrus Wellington, for appellant.

Spooner & Taylor, for respondent.

DICKINSON, J.

The plaintiff was a section man in the defendant's service. He and his foreman, one Palmer, went out from Cottonwood station with a hand car, going northeast, to engage in their work on the road. Only these two men were on the car. They knew then, from seeing the smoke of the engine, that a train was coming towards Cottonwood from the southwest, the train being then about two miles away, according to the plaintiff's testimony, but much more than that according to some of the evidence. It was an irregular freight train, not running on schedule time. The railway track over which the hand car was run seems to have been constructed on an embankment, but there were two farm crossings where the car might be taken off to let the train pass. The first was about a half mile from Cottonwood and the other a half mile further on. Between the first and second crossings there was a steep descending grade, going northeast, and a bridge and a reverse curve in the road. When the men started out, the purpose was to run to the first crossing, and take the car off there to let the train pass; but when they reached that place, the car then running rapidly, the foreman determined to run on to the second crossing, and by his direction they went on without stopping. The plaintiff thinks that the train was then about a half mile distant. It being down grade, and with a favoring wind, they ran the car rapidly; but before reaching the bridge the train came in sight, it being then, as estimated, from 900 to 1,100 feet from the hand car. The engineer then first saw the car and tried to stop the train. Palmer kept on with the hand car until he had crossed the bridge. Then the car was stopped, and the two men attempted to take it off the track. They had not time to fully do this before the engine came up. The plaintiff ran out to the side of the embankment, as he testifies, before the engine struck the car. The car was thrown upon him, and his leg broken. He prosecutes this action to recover for the injury.

The court instructed the jury to consider the question of the alleged negligence of the defendant in only two particulars: First, as to the speed of the train; and, second, as to the negligence of the plaintiff's foreman. Involved with these was also the question whether the plaintiff was also guilty of negligence. We are of the opinion that the evidence as to the speed of the train and as to the plaintiff's conduct presented a case for the jury, both as respects the negligence of the defendant and the contributory negligence on the part of the plaintiff. There were 15 loaded cars in the train. It passed the station at Cottonwood, without stopping, at a rate of speed estimated by several witnessesat from 30 to 35 miles an hour, although evidence on the part of the defendant tended to show that the speed was not more than 16 or 17 miles an hour. The running regulations forbade such trains to pass stations at a speed greater than 8 miles an hour. The train was provided only with hand brakes. If the train was running at the greater speed above mentioned, it was very much in excess of that allowed by the regulations of the defendant, as it would seem, and much greater than the ordinary speed of freight trains at that place. If the train had been running at only the ordinary rate of speed it is reasonable to suppose that the accident might not have occurred. In the view of the jury the extraordinary speed of the train may have been a proximate cause of the collision. But intimately related to this feature of the case is that of the plaintiff's own conduct. For one not employed in railway service to risk his life by attempting to run a hand car in advance of a train known to be approaching, would, of course, be negligence. But such a conclusion is...