Weireter v. Great N. Ry. Co.

• Decision Date: 16 July 1920
• Docket Number: No. 21847.,21847.
• Citation: 146 Minn. 350,178 N.W. 887
• Parties: WEIRETER v. GREAT NORTHERN RY. CO. et al.
• Court: Minnesota Supreme Court

146 Minn. 350

178 N.W. 887

WEIRETER

v.GREAT NORTHERN RY. CO. et al.

No. 21847.

Supreme Court of Minnesota.

July 16, 1920.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by Katherina Weireter, as executrix of George Weireter, deceased, against the Great Northern Railway Company and the Director General of Railroads. Motion for a directed verdict for defendants granted, plaintiff's motion for a new trial denied, and she appeals. Affirmed.

Syllabus by the Court

Plaintiff's testate, a watchman in a railroad switchyard, while stepping over the rails immediately in front of 17 cars standing upon one of the switch tracks, was killed when 6 cars that were shunted or kicked in at the other end of the standing cars bumped against the latter so that the two nearest decedent parted from the other 15, and moved forward from 8 to 12 feet, struck down and ran upon him. The accident occurred in the daytime. The evidence adduced by plaintiff disclosed that a brakeman was riding upon the cars kicked in; that, though the bell had not been rung nor the whistle sounded upon the engine that kicked the cars, it was not customary so to do; and that the cars were not sent in at excessive speed, but in the usual mode. Upon this state of the evidence the court did not err in directing a verdict for defendant.

When a plaintiff's own case shows that the act of a defendant alleged to have been done negligently was done in the usual and customary way, the charge of negligence is not sustained, unless it can be said that the common experience of the ordinary juror is competent to fix the standard of care for the doing of the particular act involved.

The proper made of conducting switching operations in extensive switchyards of a railroad company should be determined in the manner stated. Patrick J. Ryan, of St. Paul, for appellant.

M. L. Countryman and A. L. Janes, both of St. Paul, for respondents.

HOLT, J.

Action to recover for a death caused by the alleged wrongful or negligent act of defendant. At the close of plaintiff's case defendant rested and moved for a directed verdict. The motion was granted. Plaintiff's motion for a new trial was denied, and she appeals.

George Weireter, plaintiff's testate, had been in the employ of defendant, a railway company, as a watchman in its switching yards at St. Paul for more than ten years prior to February 11, 1919. The particular yard in which he then was stationed is known as the Como yard, extending westerly from the Rice Street bridge toward Como Avenue bridge. There are a number of tracks branching off from the main tracks and leads, running parallel thereto in the general direction of east and west. The tracks are somewhat on a curve, so that, when occupied by cars, a person standing between is unable to see but a short distance in either direction. The grade is slightly up in passing west. At about 10 o'clock in the morning of the date mentioned there was a string of 17 cars set in on the westerly end of track known as No. 14. The track holds about 45 cars. Mr. Weireter had discovered the hasp broken on a car door and called a car repairer to fix it. He was then about three car lengths from the westerly end of the cars standing upon track 14, and on the southerly side between that track and No. 15. He undertook to point out the door to the repairer, walking westerly, the repairer slightly ahead. As they came to the end of the 17 cars, they started to cross the track to the northerly side. The repairer got across, but as Weireter stepped upon the track a string of 6 cars, shunted in from the east, bumped against the standing cars so that the 2 westerly end cars, which were not coupled to the string, moved forward and struck him down, fatally injuring him. The men crossed the track one to three feet from the end of the car as it stood before moved by the impact. The 6 cars were set in on the track by what, in railroad parlance, is known as a ‘kicking’ movement; that is, the engine pushes them forward until they attain a sufficient momentum to go to the place intended; then the engine is uncoupled.

The negligence alleged against defendant was in making a flying switch along a curved track without warning to decedent, in not having any person on the cars to stop them or signal their approach, in not ringing the engine bell or sounding the whistle, and in driving the cars with unnecessary speed and violence against the standing cars; secondly, in permitting the brakes in the cars in the string connected with the car that struck Weireter to become defective so that they failed to hold the cars when struck by the cars shunted in; thirdly, in that the couplers of the cars involved in the accident were defective and failed to work when the impact came.

No evidence was offered touching any defect or want of repair in the brakes or couplers upon any car connected with the accident, and nothing further need be said on that subject.

We may also eliminate, as an element of negligence, the alleged absence of a person on the cars shunted in; for plaintiff's evidence is that a brakeman, Leary, rode on those cars. It was necessary to do so, in order to set the brakes when they stopped, or else they would run back east on account of the grade. Again, it is plain that, even had there been a failure to have a person on the front end of the shunted cars, such failure could not have been found the proximate cause of this accident, for there is no evidence that such a person could have seen or could have warned Weireter. The only possible fault that suggests itself in connection with setting in the six cars is that Leary should have been at the brake when the cars were about to strike those standing, so as to be able to obviate or lessen the impact. But negligence in that respect was not pleaded, and no proof was directed thereto.

This leaves for consideration whether the omission to ring the bell or blow the whistle would authorize the jury to find actionable negligence, and also whether the speed at which the cars were sent in could constitute negligence.

The evidence is convincing that in the ordinary switching operations in this yard neither the engine bell was rung nor the whistle sounded. It seems that often two or three switch engines and crews were at work on each end of the yard, a yard estimated at about 1,600 feet in length. Should all keep ringing their bells, the noise, added to the exhaust of the engines and rattling of the cars, when slack runs in and out, would rather tend to confuse than to be of service as a warning to the men about the tracks. Nor was it at all likely that deceased could have heard the bell, or, had he heard, that he could have known that any danger threatened him from the work that the engine...