Wilson v. Winona & St. Peter R. Co.

• Decision Date: 29 July 1887
• Citation: 37 Minn. 326
• Court: Minnesota Supreme Court
• Parties: LYDIA A. WILSON, Administratrix, <I>vs.</I> WINONA & ST. PETER RAILROAD COMPANY.

37 Minn. 326

LYDIA A. WILSON, Administratrix,vs.

WINONA & ST. PETER RAILROAD COMPANY.

Supreme Court of Minnesota.

July 29, 1887.

Appeal by defendant from an order of the district court for Blue Earth county, Severance, J., presiding, granting a new trial, the action having been dismissed by the court when plaintiff rested her case.

Wilson & Bowers, for appellant.

Daniel Buck and Pfau & Freeman, for respondent.

VANDERBURGH, J.¹

The plaintiff, widow of James Wilson, deceased, and administratrix of his estate, brings this action to recover damages for injuries resulting in his death, and alleged to have been caused by the negligence of the defendant. In the yard of the company at Mankato, it is alleged that a certain frog connecting the main track with a switch track was left in an unsafe and unprotected condition, and that the road-bed was improperly constructed at that point, in that an open space was left under the rail, so that the deceased, while engaged in the business of the company, accidentally caught his foot in or under the frog, and was run over and killed by the cars. This yard is connected with the main line of the company by a spur track about three miles long, and it appears that the deceased was conductor on this short line, and had the management of the business at the yard, including the switching and making up of trains. He had been so engaged for about three years, and was familiar with the character and situation of the tracks in the yard, including the frog and track in question.

The evidence shows that the track at this point was constructed in the same manner, and left in the same condition, as at other "frogs" in the yard. It was put in and constructed in September, 1880, and the accident occurred on the 22nd of June, 1881; and it appears that the deceased knew the risks and dangers connected with the use of the track at this point to persons engaged in switching while coupling and uncoupling cars. The deceased, at the time he was injured, was attempting to uncouple cars while in motion. He was at the same time giving directions or signals to the engineer, who, with the brakeman then stationed on the cars sought to be separated, was subject to his control, and while he was so occupied and walking between the rails the accident occurred. It appears, we think, that the cars could have been safely uncoupled by causing the brakeman to bring the rear cars to a stop, and thus save the risk.

1. Conceding that the questions of the negligence of the company in constructing the track, and of the contributory negligence of the deceased in attempting to uncouple cars while in motion, and occupied in giving directions to his subordinates, were for the jury, still we think there is no doubt that it must be held that he took upon himself the risks incident to the situation of the track, upon the undisputed facts of the case, unless it is made to appear that he was relieved therefrom by the acts or promises of the company. Anderson v. Morrison, 22 Minn. 274; Hughes v. Winona & St. Peter R. Co., 27 Minn. 137, (6 N. W. Rep. 553;) Craver v. Christian, 36 Minn. 413, (31 N. W. Rep. 457;) Sherman v. Chicago, Mil. & St. Paul Ry. Co., 34 Minn. 259, (25 N. W. Rep. 593;) Sullivan v. India Mfg. Co., 113 Mass. 396.

2. It is, however, claimed that, before the accident, he notified the section foreman, who had charge of the repairs of the track upon...