Smith v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 02 November 1923 |
| Docket Number | 23,601 |
| Citation | 195 N.W. 534,157 Minn. 60 |
| Parties | JOHN T. SMITH v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Renville county to recover $50,000 for personal injuries. The case was tried before Daly, J who at the close of the testimony denied defendant's motion for a directed verdict, and a jury which returned a verdict in favor of defendant. From an order denying his motion for a new trial, plaintiff appealed. Affirmed.
Brakeman off duty in caboose of his train not employed in interstate commerce.
A head brakeman on a freight train hauling interstate commerce whose run was from Oshkosh to Milwaukee and return, having a number of hours off duty at the latter place and using the caboose on his train as an abode during that time, was injured while so occupying the caboose, by a sudden jolt caused in coupling on the first two cars by the switching crew while making up the train more than an hour before time for its departure for Oshkosh. Held not employed in interstate commerce at the time of his alleged injury.
Tom Davis, Ernest A. Michel and R. M. Haines, for appellant.
F. W. Root, C. O. Newcomb and A. C. Erdall, for respondent.
Action to recover for personal injuries which the plaintiff claims to have sustained while in the employ of the defendant, as a head brakeman on one of its freight trains in the state of Wisconsin. There was a verdict in favor of defendant. From an order denying his motion for a new trial, plaintiff appealed. This action was brought under the Federal Employers Liability Act. Plaintiff bases his motion for a new trial on the ground that the trial court erred in holding that he was not engaged in interstate commerce at the time of his injury, and in failing to submit the case to the jury under the Federal act upon the question of comparative negligence.
Plaintiff was a married man 35 years of age and resided with his family at Oshkosh, Wisconsin. He was in the defendant's employ as a head brakeman on its freight train No. 67, running between Oshkosh and Milwaukee. It was plaintiff's custom to make the caboose of the train upon which he was working his headquarters and resting place between trains while in Milwaukee. The train was made up by the switching crew in the Canal Yards in Milwaukee. The foreman of that crew kept a book showing the time when the make-up of each train was completed. He testified that the train in question was all made up at 10:30 p.m. and that it required from one to two hours to make up such a train. It is conceded that there were three interstate commerce cars in this train. There is no controversy over the facts leading up to the time of the alleged injury to plaintiff. He was at home in Oshkosh over Sunday. On the following day, Monday, April 24, 1923, he went to Milwaukee on a passenger train, arriving there at 8 o'clock p.m. Upon his arrival he called up the chief call boy and informed him that he would be ready to take his run out on train No. 67 for Oshkosh that evening. The call boy told him that the train would leave at 11 o'clock. As stated in his brief, plaintiff went to the caboose at about 9:30 p.m. He then lighted a lamp in the caboose, started a fire in the stove as it was cold and damp, changed his clothes and was in the act of lighting his lantern when the caboose was bumped and plaintiff was thrown backward to the floor, hitting his head and causing a lump thereon about the size of a hickory nut. The plaintiff was alone in the caboose at the time. He testified that the jolt came when the first two or three cars were coupled to the caboose in making up the train. The train consisted of about 35 cars and there was a tag on the side of each showing its destination.
The witness Kisserow was the rear brakeman. He arrived at the caboose shortly after 10 o'clock. It was his duty to clean and fill the lamps and lanterns, put the signal lights in place and the caboose in order. When Kisserow arrived plaintiff told him about the jolt and his fall, but said nothing to the conductor and did not notify the company for 42 days thereafter. Under the rules of the company then in force, a brakeman's pay did not begin until the schedule time for the departure of his train. After the train was made up and about ready to pull out, the plaintiff took his lantern from the caboose and started along the train,...
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