Thom v. Northern Pac. Ry. Co.

• Decision Date: 02 February 1934
• Docket Number: No. 29719.,29719.
• Citation: 252 N.W. 660,190 Minn. 622
• Parties: THOM v. NORTHERN PAC. RY. CO.
• Court: Minnesota Supreme Court

252 N.W. 660

190 Minn. 622

THOM v. NORTHERN PAC. RY. CO.

No. 29719.

Supreme Court of Minnesota.

February 2, 1934.

Appeal from District Court, Ramsey County; Richard A. Walsh, Judge.

Action by Arthur E. Thom, as administrator of the estate of Stanley Prybelek, deceased, against the Northern Pacific Railway Company. From a judgment entered after the denial of its motion for judgment notwithstanding the verdict, defendant appeals.

Affirmed.

D. F. Lyons, Frederic D. McCarthy and D. R. Frost, all of St. Paul, for appellant.

Bundlie & Kelley and Joseph W. Finley, all of St. Paul, for respondent.

HILTON, Justice.

Action under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover $35,315 for the death of Stanley Prybelek, a section laborer in the employ of the defendant. Plaintiff had a verdict for $7,965. Defendant appeals from the judgment entered after the denial of its motion for judgment notwithstanding the verdict.

In the forenoon of October 31, 1931, a section crew of which deceased was a member was riding on a gasoline motor car proceeding southerly toward a place at which the noon hour was to be spent. When approximately 150 feet north of Johnson parkway, in St. Paul, at about 11.45 a. m., the motor car was derailed as it passed over a bolted frog that was part of a temporary single track leading to the right off from the main track. The temporary track had been installed to permit trains to go around an overhead viaduct which was then being constructed by the city of St. Paul so that Johnson parkway could pass under the double tracks of the defendant. A rail anchor iron had been inserted into the slot of the frog by some boys in play thirty or forty minutes before. The left front wheel of the motor car collided with the obstruction, and the derailment followed. Deceased was thrown from and run over by the car, receiving the injuries from which he died a few hours later. He was 49 years old, and had worked for defendant more than 16 years on the same section and under the same foreman.

The motor car (a Fairmount) was 6½ feet long and 5½ feet wide. On the platform of the car, over its wheels, was a board seat on each side the full length of the car and facing away from the center thereof. At the ends and back of each seat was an iron pipe railing. Between the backs of the two seats and in the rear portion of the car was the driving wheel and a raised cushioned seat occupied by the driver. Two section men sat on the left side seat, and deceased was at the forward end of the right side seat. The foreman of the crew, Pollreis, sitting somewhat higher than the others (on the cushioned seat) and facing straight ahead, was driving the car. It was his intention to pass over the frog and to take the temporary or right-hand track. In so doing the wheels on the left side of the car would necessarily pass over the frog which was located on the inside rail. Deceased was riding directly over the outside rail.

The track where the accident occurred was practically straight, and the car was proceeding down a grade having a drop of about 3 inches to 100 feet. The temperature was 45 degrees above zero, with a slight wind blowing from the north. The day was cloudy, a light rain having fallen prior to 7:30 a. m. The visibility at the time of the accident was good. Pollreis, whose eyesight was good, testified that if as the car was going along he had looked at the frog he could have seen it probably quite plainly at a distance of 400 feet, and could have seen the anchor iron, which stuck up above the frog 2½ inches, when 30 feet away from it. He admitted making a statement in the presence of three persons that the reason he was not looking at the track or frog was that he was watching some men who were at work upon and under the viaduct 150 feet away and one man who was 100 feet away. Another witness, who later made a test especially for the purpose, said that he saw a like iron placed in a like position when 75 feet from it; another witness stated that in his opinion such an iron in such a position should be seen at a distance of 125 feet. There was evidence that under the conditions existing at the time of the accident the anchor iron as then placed could be seen better on a cloudy day than on a bright sunshiny day.

Pollreis testified that at a point 200 feet from the place of the accident he was driving the car at a speed of eight miles per hour and then started reducing it to between five and six miles an hour, and was going at that speed for about 100 feet before and at the time of the accident; that he so reduced the speed because it was not safe to pass over the frog onto the right-hand track at a speed of eight miles an hour; that on a level track at a speed of five or six miles an hour the car could have been stopped in 12 feet. An engineer expert testified that, if the car could be stopped in 12 feet on a perfectly level track, it could be stopped in 12.831 feet on a track having a decline of 6 inches in 100 feet. Another witness, familiar with the operation of such a motor car, testified that, under the conditions existing at the time of, and prior to, the accident the car could have been stopped in 3 feet if going at the rate of speed claimed by Pollreis. There was a variance in the evidence as to where the car stopped after the accident. Pollreis stated the car went between 12 and 15 feet on the ground and ties before it came to a stop; another witness, one of the laborers riding upon the car at the time of the accident, testified that it went 14 or 15 feet. However, in a written statement made before the trial and admitted in evidence, the latter stated that the car went 30 to 35 feet after it went off the track before it stopped.

Written rules of the company were admitted in evidence. They are:

"Track Foremen.

"1735. They must closely inspect sections as often as possible; pass over or send one of their men, during storms when the road is liable to be damaged, at least once every day or more frequently during the continuance of storms if circumstances demand; pass, or send one of their men, over track under their charge, when no damage thereto is threatened by storms or unusual conditions, at such intervals as may be specified by the roadmaster or other proper authority, or as may be necessary to insure safety. In going over track as above, take a track wrench, spike maul, six torpedoes, three red flags and (when likely to be needed) one white and two red lamps. Carefully examine road to see if safe for passage of trains. If any place is found unsafe, it must be protected at once by a flagman with red signals and torpedoes. Observe all main track switches and see that they are securely locked."

"54. Cars must be operated under full control, prepared to stop, when approaching highway crossing and places where track or other gangs are at work on tracks and bridges."

"62. While operating hand or motor cars, when sufficiently manned, at least one man shall face each direction to watch for trains, cars and obstructions. * * *"

Pollreis testified that he inspected the tracks from his seat as he drove the car and that just prior to the accident he was looking straight ahead. Apparently, however, he was not looking directly at the track or the frog, for, as hereinbefore noted, he himself stated that he was looking at the men at work upon or around the viaduct. Although testifying that the men riding toward the front of the car were supposed to look ahead for obstructions upon the track, and that he had instructed them so to do, he stated, when asked if he did all the looking ahead or let some of the men do it, "I done that myself."

Defendant's contentions are: (1) That no actionable negligence on the part of defendant had been shown (2) that the derailment and the death of plaintiff's intestate were the result of the sole negligence of the deceased; (3) that the death occurred as a result of and was due to risks of the employment that were open and obvious to deceased and which he assumed; and (4) that the act of the trespasser was the proximate cause of the derailment and fatal injuries to deceased.

1. Defendant's only motion having been for judgment non obstante, but one question is here for determination, Does the evidence clearly show that plaintiff was not entitled to recover? Herman v. Wabash R. Co., 153 Minn. 195, 189 N. W. 934; 3 Dunnell, Minn. Dig. (2d Ed.) § 5085. The judgment will not be reversed even though the evidence was such that the trial court in its discretion ought to have granted a new trial; it must be clear from the whole record that the moving party, as a matter of law, was entitled to judgment on the merits. Marquardt v. Hubner, 77 Minn. 442, 80 N. W. 617; Farmers State Bank of Christine v. Merchants' & Mfrs.' State Bank, 164 Minn. 300, 204 N. W. 965. In other words, the evidence must be so conclusive as to compel, as a matter of law, a contrary result. Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077; Smith v. Gray Motor Co., 169 Minn. 45, 210 N. W. 618; Schendel v. Chicago, M. & St. P. R. Co., 181 Minn. 395, 232 N. W. 629.

2. The manner in which the accident occurred was disclosed by witnesses friendly to defendant; no one other than defendant's employees saw the accident. But, even from their own version thereof, it certainly cannot be concluded as a matter of law that the foreman at least, if not also the man sitting up front on the left side, was not negligent in failing to keep a proper lookout for obstructions upon the track and in failing to see such an obstruction then in plain view in ample time to stop the motor car. Both these men from their positions on the car had a better opportunity to detect obstructions upon the left track than did deceased, who was seated on the right side with his body facing...