Nos. 14,189—(212) | Minn. | Feb 3, 1905
Plaintiff’s intestate was killed March 16, 1903, while switching loaded freight cars from incoming and outgoing trains in defendant’s yards at the Minnesota Transfer, which contains a large number of tracks, and each yard has its own lead track, with numerous switch tracks branching off first at an angle and then running parallel. Deceased was working with a crew of men under a foreman in the “B” yard, where the tracks were on a slight grade to the north. The crew consisted of the foreman, fireman, engineer of the switching engine, and two switchmen, one of whom was Griffin, the deceased. There were thirteen tracks, numbered consecutively. At the time of the accident Griffin was assisting in switching two gondola cars that had been detached from a train of about twelve cars on the lead track and switched to track No. 13, the most northerly in that yard, it being the intention to couple them with a bunch of six loaded box cars standing on track No. 13. When last seen, Griffin was standing on the north end of the north gondola car, having hold of the brake. Half an hour later he was missed, and when found the gondola cars were coupled to the box cars and Griffin lay dead under the gondola car on which he had been riding, his body lying diagonally between the rails at a point about six feet from the end of the car, just past the forward trucks. His neck was broken, but there were no other marks upon his body except an abrasion on one cheek. Between the gondola car and the box cars to which it was coupled was a space two and one half feet wide. A light rain had fallen for an hour or two, and the tracks were wet, though not frozen. The gondola cars were loaded with what is known as “angle iron.” Everything was found intact about the coupling and the brake. There was nothing to indicate a violent collision, and the brake was not set.
On this occasion the foreman had ordered what is known as a “double cut,” the engine upon the lead track moving back with sufficient force so that the momentum of uncoupled cars, when the train was slackened, would be sufficient to carry the gondola cars upon switch track No. 13, and at the same time carry other cars upon No. 11; the other switchmen in the meantime operating the switch at track No. 11. In order to make this double cut, it was necessary to move the train a little faster than required to make a single cut. Griffin had
The trial resulted in a verdict for plaintiff, and appeal was taken from an order of the court denying defendant’s motion for judgment notwithstanding the verdict, or for a new trial.
The various acts of negligence charged to defendant were that its foreman was negligent, under all the circumstances, in making the so^ called “double cut”; that the foreman and engineer were negligent in kicking the gondola cars harder than was usual or necessary; that Griffin’s death was caused by the unusual and severe concussion of the cars when coupling; that defendant was negligent in allowing the stone to remain on the narrow platform or ledge on which Griffin was obliged to stand and work in setting the brake. On the other hand, it was sub»mitted on behalf of defendant that it conclusively appeared from the evidence that, whatever may have been the cause of Griffin’s death, it was not occasioned by any negligence on the part of defendant.
Two theories are advanced to account for this unfortunate accident. By plaintiff: That there was evidence tending to show Griffin was a green hand, with no knowledge of the practice of making double cuts, and that upon this occasion the momentum given the gondola cars was of such force that he was unable to control them by means of the
The question was submitted to the jury by the trial court, and the court refused to disturb their verdict upon the ground that they were warranted in drawing the inference from the circumstances, that Griffin met his death by reason of the negligent acts of defendant in making the double cut and in sending the gondola cars down the lead track at an unusual and unnecessary rate of speed, which Griffin was not required to and did not anticipate, but was killed while in the exercise of his duties as a switchman, endeavoring to control the cars.
While defendant presents a theory claimed to be the most reasonable to account for the accident, its acceptance is not necessary in order to release defendant from the imputation of negligence. The switchmanmay have met his death in some entirely different manner, and it is only essential to determine whether it was caused by the negligent acts of defendant. The foreman, who was called as a witness on behalf of plaintiff, testified that it was customary to make double cuts whenever opportunity afforded, and that on this occasion the two gondola cars were kicked off harder than they would have been for a single cut; that he did not know exactly where the box cars were standing on No. 13, and could not see them on account of cars on track No. 12, and that, if he had known just where the cars on No. 13 were located, he would not have kicked the gondola cars as hard as he did; but he further testified that the two cars were entirely under the control of the switchman, and could have been slowed down by him to the proper speed necessary to make the coupling. He also testified that,
The only evidence in the case to indicate that on this particular occasion the cars were .kicked off harder than necessary is the statement of the foreman that, had he known exactly where the box cars on No. 13 were, he would not have kicked quite as hard as he did. This statement is somewhat in conflict with his previous statement to the effect that the track was slightly downgrade, and, if the cars kicked .off were given sufficient momentum to pass the curve, they would of themselves acquire sufficient speed to make the intended coupling. However, there is nothing in the case to indicate that the rate of speed, although more than necessary to accomplish the particular object on this occasion, was greater than could be controlled by the switchman in charge, and, so far as appears, the speed was no more than customarily given such cars in making double cuts. In conducting such switching operations the foreman could not be required to judge with precise accuracy the location of the cars he desired to couple with, and the exact momentum needed. True, unusual and unexpected impetus given cars upon such occasions might take switchmen and brakemen unaware, and render the company liable, but there is no evidence to that effect in this case. When last seen, Griffin was at his post. There was nothing unusual in the speed of the cars or his actions to attract the attention of those whom he passed, and, although the rails were wet, there was nothing to indicate that he was prevented from performing his duty in controlling the cars and regulating the speed to that required for the coupling, except the fact that he was found under the forward trucks of the car he was riding, and that, as already stated, the cars were sent off with more speed than necessary to reach the box cars.
The evidence does not disclose whether Griffin had been employed in making double cuts, but it is conclusive that the making of double cuts was of daily occurrence in that yard during his employment there.
The stone found upon the ledge of the car was not shown to have any connection with the accident, and to our minds the conclusion reached by the jury is based upon pure conjecture, having no foundation in the evidence. It will probably never be known exactly how this man met his death, but, in order to charge defendant with negligence in contributing to it, something more tangible was required than the mere fact that his body was found in the position stated, and that the cars were kicked off at a greater speed than necessary on that particular occasion.
It is evident that all available light has been thrown upon the incident, and that a new trial would be of no avail. It is therefore ordered that the order appealed from be reversed, and that judgment be entered in favor of defendant.