Thompson v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 06 October 1883
• Citation: 18 F. 239
• Parties: THOMPSON, Adm'r. etc., v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — District of Minnesota

18 F. 239

THOMPSON, Adm'r. etc., v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, D. Minnesota.

October 6, 1883

C. K Davis and Colburn & Bassett, for plaintiff.

Bigelow Flandrau & Squires, for defendant.

SHIRAS J., (charging jury.)

In this cause the plaintiff, as administrator of the estate of Christel Olsen, seeks to recover damages in the sum of $4,995 against the defendant, the Chicago, Milwaukee & St. Paul Railway Company, on the ground that said Olsen, while in the employ of the company, was killed by the falling of a bank of earth upon him, on or about the twenty-fourth day of July 1881.

It appears from the admission in the pleadings, and from the undisputed evidence in the case, that Christel Olsen had been for some time prior to his death, in the employ of this railroad company as a section hand upon that part of its road running through Fillmore county, in this state; and in July 1881, he, with others, was taken from the ordinary section work, and formed into a gang and put to work at a point upon the road known as Ryan's cut; that their work consisted in cutting out and loading upon cars earth and materials used in filling up other portions of the defendant's track, the same being dug out by means of a steam-shovel, which was operated both day and night,-- the said Olsen forming part of the force that operated the shovel during the night-time; that Olsen, with an assistant, was placed between the steam-shovel and the bank of earth, by the side of the shovel machine, which was placed about eight feet from the bank; that the work of excavating the bank for filling purposes was under the general supervision of one Thomas Kavanaugh, who was a road-master in charge of some 50 miles of defendant's road, including the point known as Rayn's cut; that the work of excavating this bank or cut had been in progress for some time, and the cut had been carried a distance of some 500 or 600 feet, its height varying from 6 to 18 or 20 feet; that early in the morning of July 24, 1881, while the said Olsen was in his proper position by the side of the steam-shovel, the bank fell upon him, causing his immediate death; that Thomas Thompson, the plaintiff herein, has been duly appointed administrator of the estate of the deceased, and in that capacity is entitled, under the laws of the state of Minnesota, to maintain an action for the damages caused by the death of said Olsen, against any party legally responsible for the death of said Olsen, if any such there be.

The plaintiff in this action claims that defendant is legally responsible for the damages caused by the death of said Olsen, and as grounds for such claim avers, in substance, that the bank at the place where the steam-shovel was being operated on the night of the twenty-third and morning of the twenty-fourth day of July, 1881, was composed of earth, clay, sand, or gravel, and was, from its composition, liable to cave in and fall down; that Kavanaugh, the road-master of defendant, knew by personal inspection the unsafe and dangerous character of the bank, and its liability to cave in or fall down, unless it was sloped or otherwise protected; that, without taking proper precaution for the safety of the men under him, he required them to carry on this work; that he placed Olsen between the bank and the steam-shovel, and did not warn him of the danger to which he was exposed; that Olsen was ignorant of the danger, to which he was exposed; that Olsen was ignorant of the danger, not being acquainted with the character of the bank; that by the mode in which the work was carried on under the direction of Kavanaugh the bank was caused to fall, thereby causing the death of said Olsen. These allegations are denied by the defendant, who claims that the falling of the earth was an unforeseen accident, and was not caused by any negligence on the part of said Kavanaugh, and that Kavanaugh did not know, or have reason to suspect, that there was any special risk or danger of the bank caving in, and that he had no more knowledge in regard to the bank, its composition, and liability to cave in and fall down, than had Olsen himself.

In cases of this character it is not sufficient, to enable the plaintiff to recover, for him simply to show that his intestate, while in the employ of the...