95 Minn. 49 | Minn. | 1905
Defendant company, as lessee, had the right to use certain of the Northern Pacific Railway Company’s tracks in Minneapolis. In that portion of the company’s yards involved in this case there was a certain switch shanty, a one-story building, 12x36 feet, for the use and benefit of yardmasters and switchmen, located south of the main tracks, and about five hundred feet east of the roundhouse, the north side of which was about-five feet south from the southerly rail of the eastbound main line track. Between the building and the track was a platform about four feet wide, upon which, standing against the building, with the exception of the westerly portion, was a bench about sixteen inches wide. The building consisted of a west and east room; the former opening upon the platform by a door facing the track, and the
Plaintiff’s intestate, Robert H. Graham, was employed by the Northern Pacific Company as assistant yardmaster, in which capacity he served at the place involved for a number of years. The platform in front of the switch shanty was a perilous place, because the pilot beam on the engines extended over the platform, leaving only about two feet of clearance between it and the wall of the building. About five o’clock in the afternoon of February 3, 1904, Graham, in the discharge of his duties as yardmaster, was in the west room of the switch shanty, giving directions to certain switchmen. He passed out of the door to the platform, and proceeded to walk eastward along the platform in front of the shanty, when defendant’s engine rapidly approached from the west, overtaking him either near the east end of the building, or after he had passed it, the pilot beam striking him under the left shoulder. He was picked up at a point about twelve feet east from the east end of the switch shanty, and death resulted either from the blow of the pilot beam or from concussion received from the fall. A verdict having been returned for plaintiff, defendant moved for judg
There is evidence reasonably tending to support the claim of plaintiff that it was a custom of long standing for the engine passing easterly through the yards in front of the switch shanty regularly every evening at five o’clock to slow down after passing the Plymouth Avenue Bridge in order to receive the signal from the switchman at the switch ninety feet west of the shanty, and it was that switchman’s duty to post himself by observations to the east, and ascertain whether the track was clear, and, if so, to give the signal to the engineer of the approaching engine to go ahead. In order to receive this signal, it was the custom of the engineer to slow up the engine as he approached the switchman to a speed not exceeding eight miles an hour, and to pass through the yards beyond the switch shanty with his engine under control or running not faster than six to eight miles an hour. There is also evidence to the effect that at the time in question the engineer in charge of the approaching engine did not comply with the custom and slow down the engine, but proceeded past the switch shanty without diminishing the speed at all; and several witnesses stated he was running from eighteen to twenty miles an hour. There was a conflict in the evidence as to whether the engineer rang the bell or gave other signals of warning. Whether or not signals were given was plainly a fact for the jury. It must be conceded that under the circumstances the engineer in charge of defendant’s engine was guilty of negligence in so running the engine through the yard contrary to the general custom, and defendant is liable for the 'consequences, unless it appears, as a matter of law, that Graham was guilty of contributory negligence.
The principal ground upon which defendant bases this claim is that the space along the platform between the building and the track was exceedingly dangerous; that Graham was thoroughly familiar with the situation, his duties as assistant yardmaster requiring him to know the movements of trains and the time of their passing that point; that on this occasion he knew the engine was coming, because he came out of his office on the platfdrm at a time when he saw it approaching at a
When employees are required, in the performance of their duties, to occupy places of peril, the master should not thus be permitted to shift responsibility if it conducts its business in such manner as to cause the employee to assume that he may safely take such line of conduct into account in controlling his own movements. In this case it clearly appears that there was a reason for the rule requiring engines and trains to slow down in order to get the proper signal to go on. The switchman at his post was required to inform himself whether it was proper to give such signal, and the act itself of passing through a yard at a rapid rate of speed, where switches may necessarily have to be manipulated, is fraught with danger. Assuming that Graham saw the engine approaching some two or three hundred feet to the west upon coming out of the door to the platform at the west end of the shanty, he had a .right to believe that it was in the process of slowing down to the accustomed speed in order to receive the signal, and that the engine would not pass the switch shanty faster than six or eight miles an hour. It cannot be said, as a matter of law, that he was guilty of contributory negligence because he took only the time usually necessary under such circumstances to pass the building and get out of the way. It does not exactly appear where Graham was when struck by the engine. Some of plaintiff’s witnesses said he was on the platform, about eight feet west from the east end of the building. It seems
Under all these circumstances it was a fair question for the jury to determine whether or not he knew the engine was approaching, and assumed it would follow the accustomed practice, and slow down to the usual speed, giving him sufficient time to pass around the building before being overtaken; and whether, while so engaged, he was exercising ordinary care, and did not hear the signals, if any were given. Bearing upon the question of rules and custom in cases of this character, the following authorities may be considered: Loucks v. Chicago, M. & St. P. Ry. Co., 31 Minn. 526, 18 N. W. 651; Rahman v. Minnesota & N. W. Ry. Co., 43 Minn. 42, 44 N. W. 522; Westaway v. Chicago, St. P., M. & O. Ry. Co., 56 Minn. 28, 57 N. W. 222; Hooper v. Great Northern Ry. Co., 80 Minn. 400, 83 N. W. 440; Walker v. St. Paul C. Ry. Co., 81 Minn. 404, 84 N. W. 222.
Order affirmed.