Sobieski v. St. Paul & Duluth R. Co.

• Decision Date: 02 July 1889
• Citation: 41 Minn. 169
• Parties: MICHAEL SOBIESKI <I>vs.</I> ST. PAUL & DULUTH RAILROAD COMPANY.
• Court: Minnesota Supreme Court

Page 169

41 Minn. 169

MICHAEL SOBIESKI vs. ST. PAUL & DULUTH RAILROAD COMPANY.

Supreme Court of Minnesota.

July 2, 1889.

Appeal by defendant from an order of the district court for St. Louis county, Stearns, J., presiding, refusing a new trial after verdict of $7,000 for plaintiff.

James Smith, Jr., and W. A. Barr, for appellant.

Edson & Hanks and Edmund Sherwood, for respondent.

DICKINSON, J.

This action is to recover for personal injuries suffered by the plaintiff from being run over by a locomotive of the defendant at its station grounds in Duluth. The principal question which we have been called upon to consider is whether the case shows contributory negligence on the part of the plaintiff, so that the verdict in his favor cannot be sustained. The claim of the plaintiff that the engine by which he was injured was started from a stationary position near the place of the accident, and run until he was struck without any signal by bell or otherwise, is so well sustained by the evidence that the verdict of the jury, so far as it involves the matter of the defendant's negligence, cannot now be disturbed. Assuming this to have been true, there is not much controversy concerning the facts bearing upon the issue as to the plaintiff's negligence. The evidence was such that now, after verdict, the facts may be taken to have been as follows: The plaintiff was a servant of the defendant, employed as a switchman at Duluth, working in connection with the operations of a switch-engine. He had been for 11 years engaged in work of that kind. For about four years he had been in the employ of the defendant. For convenience of description, we will say that the main track of the railroad was laid in an east and west course. On either side of it, north and south, were side tracks, parallel with it, and connected with it by switches. On the 19th of December, between 7 and 8 o'clock in the morning, while the engine with which the plaintiff was at work was standing upon the north side track, it became necessary for the plaintiff to go south-easterly across the main track about 600 feet to get some coupling links and pins, in order to make some couplings in connection with the operations of his switch-engine. Having procured them, in returning to his engine, having reached the main track, he ran along it between the rails toward the west, in the direction of his own engine. As he did so he saw and passed the engine by which he was injured, which was then standing upon the south side track. After he had passed this point, this engine ran easterly by a switch to the main track, and backed west on the main track, overtaking the plaintiff, and running over him. No signal, by bell or otherwise, as we must now consider, was given of the starting of the engine, or when, having reached the main track, the direction of its movement was reversed, and it ran west to the place of the accident. The distance of the movements to which we have referred was not great. It does not appear that the plaintiff's whole course along the main track was more than about 300 feet. The plaintiff knew when he saw this engine standing on the side track that it would run out on the main track, and go west as it did, but did not know when this would be done. He did not see it start, and was in no way notified of its movements until the instant it struck him.

It was the known custom to indicate the movement of engines by the ringing of the bell. There was room for the plaintiff to have travelled along the road between the main and side tracks, but in doing this he would have had to wade in snow to a considerable depth, variously estimated by the witnesses at from six or eight inches...