46 Minn. 439 | Minn. | 1891
This was an action to recover damages for personal injuries sustained by plaintiff while in defendant’s service as a locomotive engineer of a passenger train. The injuries were the result of a collision between plaintiff’s train and some freight-cars on defendant’s main track, between Dayton’s Bluff and Oakland station; and a somewhat full statement of the facts is necessary to a proper understanding of the case. The plaintiff was employed in running the regular suburban passenger train between the Union Depot, in St. Paul, and Pullman avenue, a distance of 10.18 miles,
The defendant had promulgated certain rules for the government of its employes, the most material provisions of which are as follows:
“All trains and engines within the limits of Savanna, Bast Dubuque, Grand Crossing shops, and St. Paul yards will be subject to the orders of the yard-masters. Switching engines will work daily at these stations inside yard limits, as shown by signal boards. Altrains must approach these yards under'full control.
“All trains are required to reach the extreme limits of and to pass through all stations completely under control. Speed must be reduced, and the engineer and trainmen must commence to get their train in hand at least one-half mile from a station, so that under no*442 circumstances whatever shall it be possible' for it to strike any train* car, or engine which may be inside the limits of the station. The entire responsibility for safety rests with the approaching train. All engines must pass switches cautiously, and engineers must be sure they are right before passing them.”
Trains were classified on the time-tables with regard to their priority of right to the track. Trains of the first class (to which plaintiff’s train belonged) were superior to those of the second and all succeeding classes. All trains not classified on the time-tables were known as “extra,” or “wild” trains, and were required to keep entirely out of the way of all regular trains, of whatever class, clearing the time of such regular trains at least 10 minutes if passenger, and 5 minutes if freight, trains. Trains of a superior class had the absolute right of the track over all trains of an inferior class. Working trains in all cases to clear the time of passenger trains at least 10 minutes.
“Should any freight or irregular train, at any time, be compelled to occupy the main track at a station or elsewhere within the time of any passenger train, the conductor of such train must immediately send out a flagman to warn the approaching train.”
Another rule provided that, when the track was obstructed by accident or from any other cause, the conductor should immediately protect his train, either by going back himself, or sending a competent flagman, with danger signals, (a red lantern and torpedoes by night,) to a point not less than 20 telegraph poles (2,000 feet) distant from the rear end of his train, and until he reached a point where his danger signals could be seen not less than a quarter of a mile by the engineer of an approaching train, where he should place one torpedo on the rail, then move back one telegraph pole, and there remain until the expected train arrived, or until he is recalled by the whistle of his own engine.
On the night in question, which was rather dark, the plaintiff’s train, consisting of an engine, baggage, smoking, and two passenger coaches, left the Union Depot on schedule time, (9:30 p. m.,) and also left Dayton’s Bluff station on time, (9:38,) running at the usual rate of speed, 18 or 20 miles per hour. Plaintiff sat looking down the
The cause of the collision was as follows: A switching crew had left a string of freight-cars on the main track, just north of the switch, from about 8 o’clock in the evening. Within four or five minutes of the time of plaintiff’s train, the person in charge of the switching crew sent an engine, with two cars attached, out on the main track to bring in these freight-cars. This engine first ran south on the main track far enough to clear the switch, which was then set for the main track. It was evidently after this was done that the plaintiff, while on the lookout before the injector broke, saw the white lights. The engineer of the switch-engine then backed up north on the main track, and coupled on the freight-cars referred to, and then went south far enough to let the rear of these cars clear the switch. During all this time the switch was set for the main track, and, of course, would continue to show a white light up and down the track. After the freight-cars had thus cleared the switch, the brakeman in charge of the switch signaled the engineer to stop, and then opened the switch to enable him to back in on the side track. It is fairly inferable from the evidence, that it was before this was done that plaintiff’s attention was directed to the injector. Immediately upon receiving the signal, the engineer of the switch-engine, who was evidently working as rapidly as possible, stopped and commenced to back in on the side track. As soon as the rear of the freight-cars entered upon the side track, it would hide the switch-light from one coming down the main track from the north. It was
1. Defendant’s first point is that the evidence does not show that it was guilty of any negligence or failure of duty towards the plaintiff. .The statement of facts is a sufficient answer to this proposition. The conduct of the switching crew in using the main track for switching purposes, right on the time of plaintiff’s train, and in plain violation of the company’s rules, was negligence of the grossest kind, which might almost be characterized as wanton and criminal. The plea that this was purged or relieved of all negligence by the act of the person in charge of the switching crew signaling plaintiff’s train with a lantern is not warranted by the facts. As has been already said, it does not appear that he ever gave any adequate signal. On the contrary, it is almost conclusively demonstrated by the evidence that he could not have done so.
2. The contention that plaintiff voluntarily assumed all the risks resulting from the negligence of other employes of the company in violating its rules is equally untenable. The line of argument advanced in support of this position is, in substance, that, inasmuch as plaintiff was advised by certain rules that other employes might violate other rules, and obstruct the main track at a forbidden time,
3. The next point urged is that plaintiff was himself guilty of contributory negligence in not reducing the speed of his train while running through the yard, so as to have it “completely under control,” as required by the rule; which counsel claims means that the speed must not be greater than that at which the engineer can stop his train within the distance that he can see danger ahead. This rule, like many of the others, does not command the doing or not doing of a particular specific act, but is one calling for the exercise of judgment and diligence on part of the engineer, and must be construed in that view, and considered in connection with the other rules of the company, and the other duties and responsibilities imposed upon engineers. It would seem that the construction which plaintiff himself put upon this .rule is a reasonable one; that is, that he should have his train so under control that he could stop it before reaching the danger point, if the proper signals were seasonably given him.
4. It is finally urged that it was negligence per se for plaintiff to cease his lookout, even temporarily, for the purpose of looking at the injector. • To our minds this is the only debatable question in the case. It is argued that the rules of the company required engineers to keep a constant lookout while running through yard limits, and that if plaintiff had done so in this case he would have seen the red light on the switch-stand when set to let in the freight-ears on to the side track, and would also have sooner discovered that this light was obscured, and likewise have sooner discovered the waving of the lantern, and thus have been able to avoid the collision. It may be conceded that the evidence shows that if plaintiff had kept a constant lookout he would have discovered these indications of danger a very few moments earlier than he did, and consequently have been able to slow his train a little sooner, so as to have at least diminished somewhat the' injurious consequences of the collision; also that there was no actual necessity for his watching the fireman fix the injector. It will be observed, however, that the rule nowhere expressly requires engineers to keep a constant lookout. Counsel merely claims that it is implied from the rule as he construes it. But it is evident that it cannot be construed as absolutely and inflexibly requiring engineers to keep a constant lookout, under all circumstances; for, as they have the general care and supervision of their engines, it is evident that circumstances might frequently occur which would require them to give their attention temporarily
5. The defendant also takes exception'to the court’s instructions, and refusals to instruct, as to the degree of care which plaintiff was required to exercise. The court was requested to instruct the jury that it was plaintiff’s duty, as engineer of a passenger train, to exercise the utmost human care and foresight to avoid a collision between his train and any obstruction on the track, and if he failed to exercise the utmost human care and foresight, and such failure contributed to the collision in which he was injured, he could not recover. The court refused to give this, but did instruct the jury, in substance, that a railroad company owes to its employes the duty of
The argument of defendant’s counsel is that, as a railway company owes to its passengers the.“highest degree of care,” and as it can only do this through its employes, therefore the employes engaged in running passenger trains owe the highest degree of care to the company. This sounds very plausible, but, if the position be sound, it is rather strange that the text-writers and decided cases all lay down the rule exactly as stated by the trial judge in this case; and, so far as we can discover, the proposition insisted on by counsel has never before been advanced, except in the case of Locke v. Sioux City & Pacific R. Co., 46 Iowa, 109, where it was very promptly overruled. If the employe owes the highest degree of care to' the employer because the latter owes that degree of care to its passengers, it is difficult to see why, on the same reasoning, the employer does not owe the same degree of care to its employes. But the question is not one of duty between carrier and passenger, but between employer and employe, and we have no doubt the law was correctly stated by the trial judge. Moreover, at least as applied to this case, the assumed distinction between the “highest care” and
6. The jury awarded the plaintiff $40,143.33 damages, and upon defendant’s motion for a new trial upon the ground, among others, that the damages were excessive, the court required the plaintiff, as a condition to denying a new trial, that he reduce his verdict to $25,-000, which he did. It is claimed that this is still excessive, and that the original verdict was so much so as to indicate that it was rendered under the influence of passion and prejudice, and therefore the court erred in not setting it wholly aside. If a verdict is so mani
Order affirmed.