109 Minn. 317 | Minn. | 1909
Action to recover damages for personal injuries sustained by respondent while employed as a switchman in appellant’s railroad yards at Freeport, Illinois. Respondent claims that the footboard on the front of the engine was defective, in that it slanted back and down about one and one-half or two inches, and as he stepped upon it, while the engine was moving at the rate of two or three miles an hour, his foot slipped off by reason of such defect, and he fell under the footboard, and his foot was crushed between the front wheel of the pony trucks and the rail. The action is founded on the defective
The defense interposed is' that the accident did not occur in the manner stated by respondent, but that his foot was caught between the drawbars of the engine and an adjoining car, by reason of his negligent act in attempting to kick the drawbar while making a coupling ; but that, if the accident did happen in the- manner claimed by respondent, he as'shmed the risk and was guilty of contributory negligence.
The jury returned a verdict for appellant, and the court granted respondent’s motion for a new trial, upon the ground that it had committed error in excluding evidence as to the-custom and practice in the yard with reference to switchmen getting on the footboard of an approaching engine.
Appellant contends in this court that the verdict of the jury was right, because respondent’s account‘of his injuries was incredible, and that, if his story were true, it conclusively appears from the evidence thát he assumed the risk and was guilty of contributory negligence, and, further, that the errors of law occurring at the trial, if any, were harmless, and did not'justify a new trial.
1. Respondent’s' account of the accident was that he slipped from the footboard in attempting to step upon it; that he fell in front of the engine, passed under the footboard while clinging to it, and his foot was caught between the front wheel of the pony truck and the rail. The foreman of the switching crew testified that respondent was injured by having his foot caught between the drawbars of the engine and an adjoining car, and that he released him from that position. If this evidence was true, respondent was guilty of negligence for attempting to kick open the drawbar. According to the evidence he was not otherwise bruised, although the space between the footboard and the ties was not more than twelve inches. Respondent’s accounts of the accident were conflicting, and the corroborating circumstances meager. The jury apparently refused to accept his story; but the trial court decided that it was a proper case for resubmission on the facts, and we have concluded to abide by the decision.
2. Respondent testified that he discovered the defective condition
The principal legal question involved is: Assuming that respondent called attention to the defective condition of the footboard and protested against its use, and that the foreman promised it would be turned in for repairs in the morning, and that respondent remained at work relying upon such promise; did the foreman have authority to bind the company in making such promise?
As to a part of their work while they were engaged in switching operations, the foreman and the men constituting the crew were fellow servants; but with respect to giving orders and signals the foreman had authority to direct the movements of the others. The foreman and his assistants are sent into the yards to perform services attended with danger, and they should be furnished safe instrumentalities. There was no one else who would have knowledge of such defects except those working with the engine, and presumably it was the duty of the foreman to -report to some superior officer when such instrumentalities needed repairs. To that extent the men were not fellow servants. Pieart v. Chicago, 82 Iowa, 148, 47 N. W. 1017; Chicago v. Strong, 228 Ill. 281, 81 N. E. 1011; Railroad v. Kenley, 92 Tenn. 207, 21 S. W. 326. Ehmcke v. Porter, 45 Minn. 338, 47 N. W. 1066, is not to the contrary, but in recognition of the principle here involved.
Affirmed.