Westover v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company
| Decision Date | 24 April 1936 |
| Docket Number | 30,780 |
| Citation | 266 N.W. 741,197 Minn. 194 |
| Parties | JOHN W. WESTOVER v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Rehearing Granted May 22, 1936, Reported at 197 Minn. 194 at 204.
Action in the district court for Dakota county to recover for personal injuries sustained by plaintiff while an employe of defendant railway company. The case was tried before Charles P. Hall, Judge, and a jury. Plaintiff had a verdict of $10,000. Upon defendant's alternative motion for judgment or a new trial, the court denied the motion for judgment but granted a new trial on the sole issue of damages. Defendant appealed from the order. Modified.
Upon objection to proposed taxation of costs, order affirmed. [1]
Master and servant -- injury to railway employe operating track-car for mowing outfit -- contributory negligence of employe.
1. Plaintiff was the operator of a track-car and foreman of a mowing crew which, together with a conductor-pilot, occupied the track-car, which collided with an automobile at a highway crossing. Under the rules of the company and the federal employers liability act, plaintiff was not guilty of primary negligence in failing to observe the approaching automobile. Hie negligence, if any, was of such a character as not to preclude recovery but only to diminish the damages.
Master and servant -- injury to railway employe operating track-car for mowing outfit -- assumption of risk by employe.
2. He did not as a matter of law assume the risk.
New trial -- on all issues -- federal employers liability cases.
3. In federal employers liability cases when a verdict is excessive due to passion or prejudice a new trial must be ordered on all issues. 1
F. W Root, C. O. Newcomb, and A. C. Erdall, for appellant.
Gleason & Ward and Charles A. Sawyer, for respondent.
This case comes here upon an appeal by the railway company from an order denying its motion for judgment notwithstanding the verdict or for a new trial upon all issues, the trial court having granted a new trial on the issue of damages alone because of the excessive verdict.
The plaintiff was injured while in the railway company's employ, and the suit is brought under the federal employers liability act. He was driving a gasolene-powered track-car along the main track of the defendant company in the state of Iowa, and at an intersection of the track with a highway he was injured when he ran into the side of an automobile which was attempting to cross the railway tracks.
The principal question involved on this appeal is whether his lack of care, if any, in failing to observe and to avoid a collision with the automobile was of that character classified by the Supreme Court of the United States as primary and therefore a complete defense to this action, or only such as would go to the reduction of damages under the federal employers liability act.
The accident happened August 21, 1933. The plaintiff was the foreman of a crew engaged in mowing weeds along the railway track. They had a car equipped with power-driven sickle bars on both sides. This car was towed behind the track-car which the plaintiff was driving at the time he was injured. When the sickles were in operation each of his two subordinates was charged with the duty of operating the levers which controlled the position of one of the sickle bars. At the time the accident occurred the mower was not in operation, and the sickle bars were elevated to a position nearly vertical. As the car was being towed in that condition there was danger that the sickle bars might be jarred from their upright position, and at least one of the subordinate members of the crew was charged with the duty of looking back to see that the sickle bars were riding properly. It was also his duty to observe whether they were being overtaken by any train. The gasolene track-car on which the entire crew was riding at the time of the accident was apparently equipped with a four-cylinder model T Ford motor and radiator which was installed in the middle of the front end of the car. The gearshift and brake lever were immediately behind and possibly a little to the left of the middle of the car. The most convenient position for the driver was on a board platform or seat which ran fore and aft the entire length of the track-car. His position would be on the left side of the car immediately behind and with his right hand convenient to the control levers, his right foot hanging down or resting upon the floor of the car, which was so shaped that it was a convenient receptacle for tools, extending the length of the car. His left foot would be conveniently placed on a board which was outside of the top of this toolbox or tray and which formed a protection or fender above the wheels of the car. In that position his body would be turned a little to the left of a front-facing position. In order to look straight to the front he would have to turn his face somewhat to the right. The plaintiff was sitting in this position at the time of the collision. Behind him on the left side was his subordinate two was charged with the observation toward the rear. On the right-hand side of the car in a similar position to that of the plaintiff except that he was turned correspondingly to the right was a conductor-pilot, who was not a member of the plaintiff's crew but who was charged with the duty of protecting the car against trains and notifying the driver of highway crossings which he might be approaching. He sat slightly farther forward than the plaintiff. To the rear of the conductor-pilot sat Baxmann, the plaintiff's other subordinate. Plaintiff states that he had charged Baxmann with the duty of observing the terrain to the right-front so that amongst other things he might advise the plaintiff of approaching vehicles.
At the time of the accident it was raining, and the occupants of the car put on their goggles. The track-car and mower were being driven southerly or southeasterly, and the automobile with which it collided was approaching from the west on an east-and-west road which formed an angle with the railway track of about 60 degrees. When the track-car was within 1,000 feet of the highway intersection, Petty, the conductor-pilot, advised the plaintiff that they were approaching the highway crossing. When they were 180 feet from the crossing they were midway in a cut, the side of which was about five feet higher than the railway track. When they were something over 100 feet from the crossing there was a clear view toward the right, the direction from which the automobile was approaching. Prior to entering this cut the plaintiff had looked to the right but at no time observed the approaching automobile until he was within 10 or 15 feet of it as its front wheels came upon the track. He says that at the speed he was going he could have stopped to car in a distance of 25 feet. The collision with the automobile threw the automobile into the ditch and turned it around facing the west. The track-car went on for about 40 feet beyond the crossing, turned crossways of the railroad track, and stopped. Apparently no one on the track-car saw the automobile until the collision was imminent. The plaintiff says that he was wearing goggles and that the rain on the goggles somewhat interfered with his vision. Baxmann, who, the plaintiff asserts, had been charged with the duty of keeping a looked to the right, did not do so. It is the plaintiff's position that under the company's rules he, as foreman of the mowing crew, could place the responsibility on a member of that crew to keep a lookout in one direction while he performed that duty in another. It is also his position that the rules of the company and the common law duty of the conductor-pilot required the pilot to keep a lookout for approaching vehicles. Both the pilot and Baxmann, plaintiff's subordinate, were in a much better position to observe vehicles approaching from the right than was the driver of the car. The pilot sat slightly forward of the driver but close enough to somewhat obstruct the vision of the driver to the right. It is the contention of the company that its rules required the driver to keep a lookout in all directions and that his failure to do so constituted primary negligence within the rule laid down by the federal courts; that though Baxmann and Petty may have been guilty of negligence in not observing the approaching vehicle and warning him of it, he, as driver, was negligent in failing to perform a duty which was primarily imposed upon him and consequently that there can be no recovery. The plaintiff claims that his attention was diverted to the left by an automobile parked in a driveway leading to the highway and not far from the track, and also by a team of horses which was being unhitched in a filed near by. Since neither of these objects presented any hazard to the operation of the car and a fleeting glance from the plaintiff would have so advised him, we do not consider this element to be one of importance in the case. Nor was the slight dip in the highway, some 150 feet to the west, an important element because apparently there is no claim by plaintiff that he looked in that direction after leaving the cut. The dip was not deep enough to obscure the presence of the car passing through it. Farther to the west the road was higher.
The solution of the problem here presented is a difficult one. 45 USCA, c. 2, § 51, abolished the fellow servant rule and makes a railroad engaged in interstate commerce liable to its employes for injuries "resulting in whole or in part from the negligence of any of the officers, agents, or employes * * *." 45 USCA, c. 2, § 53, abolished contributory negligence as a...
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