Witort v. Chicago & N. W. Ry. Co.
| Decision Date | 18 March 1927 |
| Docket Number | No. 25861.,25861. |
| Citation | 170 Minn. 482,212 N.W. 944 |
| Parties | WITORT v. CHICAGO & N. W. RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Carlton F. McNally, Judge.
Action by Helen Witort, as administratrix of Stephen Witort, deceased, against the Chicago & Northwestern Railway Company. Verdict directed for defendant. From an order denying a new trial, plaintiff appeals. Reversed, and a new trial granted.
Miner & McDonald, of Minneapolis, for appellant.
Brown, Somsen & Sawyer, of Winona, for respondent.
Action to recover for the death of defendant's employee, while engaged in interstate traffic, alleged to have been caused by its negligence. A verdict was directed in favor of defendant. From the order denying a new trial plaintiff appeals.
The evidence made it an issue for the jury to determine whether defendant's negligence was the proximate cause of the death of Stephen Witort, plaintiff's intestate. Contributory negligence of deceased did not appear as a matter of law. Hence the only ground upon which the directed verdict stands is that there was not sufficient evidence warranting the jury in finding that deceased was engaged in interstate traffic when he met death; for if he then was in intrastate traffic the Workmen's Compensation Law of Illinois (Smith-Hurd Rev. St. 1925, c. 48, § 138 et seq.), where the accident occurred, was the sole remedy.
Defendant, a railroad engaged in intra and inter state transportation, has extensive freight yards at Proviso, a suburb of Chicago, Ill. Witort was a car inspector in yard No. 3, where he was killed. As such, he also made light repairs on cars found defective, being repairs that could be made without placing the car on the repair track or in the shop. At the westerly end of yard No. 3, there was a lead coming from the west and passing in a southeasterly direction. From this lead 23 tracks branched off towards the east to another lead. These tracks were long enough to accommodate a train haul of 75 or more cars. Beginning from the north the tracks were known as 0, 00, 1 to 21. Tracks 1, 2, and 3 were for incoming trains to be broken up and its cars distributed on other tracks, depending on destination or intended use.
On the morning of August 24, 1925, the yardmaster was informed that an empty car, tagged O. K. for a grain car, on track 9, which was the track where cars destined for the American Can Company, a nearby industry, were placed, had a coupler knuckle on the east end thereof out of repair. The switch crew took it out of track 9 and set it in on track 12. The yardmaster then directed that this car be sent in on track 4, and asked Witort to repair it. It was placed as directed, and Witort went to the switch shanty, located near the switch for track No. 9, to get the necessary parts and tools and proceeded to the east end of the car to replace a part of the defective coupler. While he was getting his tools, the switch crew went in on track 3 to break up a train that had come in and pulled out a string of cars, some of which were marked for track 4. The latter were pushed or shunted in on the last-named track against the car on the east end of which Witort was working. He was struck down and instantly killed, his body being dragged several car lengths.
The depositions of the yardmaster and members of the switching crew were taken by plaintiff; but defendant brought these witnesses to the trial, except Grode, the car marker, so their depositions could not be used and plaintiff was dependent on them for proof. The yardmaster was first called by plaintiff, and it soon became apparent that his testimony would not tend to show that the car on which Witort was working when killed was then in interstate commerce. Plaintiff claimed surprise and asked permission to inquire as to testimony given in his deposition at variance with that given on the witness stand. The request was refused and questions ruled out on the ground that plaintiff could neither lead nor impeach her own witness. And counsel for defendant, to forestall the claim of surprise as to other witnesses present whose depositions had been taken, then advised plaintiff that defendant had them in the courtroom, and she was free to ascertain from them what they could and would testify to before placing them on the witness stand. This the plaintiff declined to do, stating that she would assume they would testify the same as in their depositions; but when they were placed on the stand their testimony accorded with that given by the yardmaster, and no better success met her efforts to call to their attention what they had deposed wholly at variance with what they were testifying to.
Plaintiff placed in evidence the deposition of Grode, the marker of the switch crew, who passed along the trains to be broken up and by a chalk mark on the cars thereof designated the track on which they were to be placed, taking into account how each car was tagged as to condition, destination, and whether empty or loaded. Certain of the tracks were for specific uses. His testimony was that on the day in question track 4 was the Iowa track. When asked what he meant by the Iowa track his answer was: "Cars destined for points in the state of Iowa." To the question, "What was track 4 designated for?" he answered, "Ordinarily it would be Iowa dead freight cars." He also testified that at no time that morning did he go down track 4 and mark any car thereon for any other track and that it was customary for inspectors to make light repairs without placing the car on the repair track and without flagging the same. The yardmaster's testimony on the stand, while not denying that cars assembled on track 4 that day were destined for Iowa, continually qualified his answers to the effect that at any time before the locomotive for the road haul coupled to the train when fully made up, he would have pulled out empty O. K. grain cars had he received orders for such cars from the nearby industries, although he admitted there was a standing order to send such cars to Iowa and he had received no order prior to the accident to send any such cars elsewhere. It seems to us this, with Grode's deposition, read in evidence, comes very near making it a jury question whether or not the car Witort was set to repair was not at the time of the accident in interstate commerce, namely, whether it had not already been designated as part of a train then being made up for transportation into Iowa. We recognize the law to be that if by placing this car on track 4 its destination to Iowa was not thereby definitely determined, but the alternative remained that it might be diverted to intrastate traffic, Witort was not within the protection of the federal act (U. S. Comp. St. §§ 8657-8665). Philadelphia & Reading Ry. Co. v. Cannen (C. C. A.) 296 F. 302. But, if the car was definitely set in on track 4 to make up a train then being assembled for transportation into Iowa, it was already in interstate traffic when Witort was set to work thereon. That it was empty does not signify to the contrary, for just such cars were to be sent to Iowa to be loaded. North Car. Ry. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. One of the cars shunted in on track 4 against the car on which Witort was working was a loaded coal car admittedly bound for Iowa, though the...
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