Southerland v. Northern Pac. R. Co.

• Citation: 43 F. 646
• Parties: SOUTHERLAND v. NORTHERN PAC. R. CO.
• Decision Date: 13 October 1890
• Court: U.S. District Court — District of Minnesota

43 F. 646

SOUTHERLAND v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Minnesota.

October 13, 1890

McDonald & Barnard, for plaintiff.

John C Bullitt, Jr., for defendant.

NELSON J.

This suit is brought to recover damages for injuries received by the plaintiff while working for the defendant as a switchman on a track called the 'house track,' in the yard at Missoula, Mont. He had charge of the yard crew on the night when injured in making up trains and taking out empty cars. In coupling cars, he caught his foot in a pile of ashes on the track between the rails, which threw him down, and the trucks of one of the cars ran over him. The pile of ashes was about four feet long, and six or seven inches high, between the rails, and showed the appearance of having been pushed down by the brake-beams or sand-boards of cars running over it. The duty of the section foreman was to keep this track clear, and remove ashes if dropped upon it. It was submitted to the jury to determine from the evidence whether the head of ashes was of an immense size so as to form an obstruction and interfere with the plaintiff in the discharge of his duty. The evidence was conflicting about the custom of dumping ashes in the yard, but there was evidence tending to show that, at the time plaintiff worked in this yard, and previous thereto, ashes were usually dumped at or near a coal-shed, and not in the yard. The gist of the action is that the defendant was negligent in permitting its road-bed which the plaintiff was compelled to go upon in the discharge of his duty, to become obstructed, and thus increasing unnecessarily, the danger incident to his employment. It is urged by defendant that the injury was occasioned either by the plaintiff's own negligence or by the negligence of a fellow-servant in the same common employment, viz., the negligence of the fireman in dumping ashes on the track, or the negligence of some person whose duty it was to keep the track clear of obstruction. It cannot be assumed from the evidence that the situation which caused the plaintiff to catch his foot was apparent and obvious, and the question of plaintiff's knowledge of the condition of the track at the place of injury by the exercise of ordinary care was properly submitted to the jury. The court would not have been justified in holding that the defendant was not liable for the negligence of the person upon whom the duty was imposed of...