41 Minn. 444 | Minn. | 1889
The defendant herein moved for a new trial upon the sole ground that the verdict was not j'ustified by the evidence. .From an order refusing to grant the motion an appeal is taken.
In the fall of 1887 plaintiff was employed by the defendant for a few days as head brakeman upon one of its freight trains. Prior to this he was wholly without actual experience as a brakeman, although he had obtained some knowledge of the duties by observing others while they were engaged in that kind of work. After a few days’ absence from the road, he was again employed for the same service, and a few minutes afterwards, while attempting his first coupling, lost the forefinger of his right hand. This action was brought to recover damages for the loss. The coupling which plaintiff endeavored to make was that between the locomotive and the train, which consisted of box-cars, provided with the common coupler or draft-iron, and a caboose, the latter in the rear. The locomotive had previously been fitted up for passenger train service, with a so-called “goose-neck” draft-iron. This goose-neck is a large casting, bolted upon the rear of the tender in place of the ordinary draft-iron, and its name suggests its form and shape. It projects above, and its face or end service, which is 7 by 12 inches, is beyond or further to
The rules of law by which this ease must be governed have so often been declared by this court that they need not be repeated at length on this occasion. The plaintiff, when entering into defendant’s service as a brakeman on one. of its freight trains, took upon himself only those risks which were naturally and ordinarily incident to his employment, or which, from the facts before him, it was his duty to infer, and such risks, also, as might be announced to him as occasion required, and which he thereafter assumed. If defective instrumentalities were furnished for his use, he must not only have known or ought to have known their actual character and condition, but to have understood, or by the exercise of ordinary observation to have realized, the risks to which he was exposed by their use. This has been quite recently stated in Russell v. Minn. & St. Louis Ry. Co., 32 Minn. 230, (20 N. W. Rep. 147,) a case wherein the injury resulted from the use of a freight engine with the customary draw-bar upon a baggage-car furnished as is usual with the Miller coupler and buffer. There the combination was a freight engine and a car equipped for passenger trains; here it was a passenger engine and a freight-car built for that use only. There the damage was caused because nothing was provided which would prevent the locomotive from coming dangerously near the car, should the ends of the draw-irons slip past each other, as they might do under certain circumstances, but not often; here it was caused by the absence of something which would prevent an appliance of no value upon a freight engine from continually being very dangerous to- a brakeman who occupies the proper position for coupling a freight engine to a freight-car, and for properly and with reasonable safety performing his duty; and plaintiff was confessedly in this position when injured. It may also be noticed that in the Russell case the plaintiff was a brakeman upon a train, part passenger and part freight, and had been using the couplers by which he was hurt for some time, — had become accustomed
The plaintiff testified that he did not see the goose-neck on the locomotive until it was upon him. This testimony is characterized by appellant as incredible, because, as it claims, the casting was large -enough, and must have been observed when the plaintiff looked for and discovered the link in a pocket just beneath the neck. We must •assume the plaintiff’s statement to be the fact, although it may seem strange that the iron escaped his attention. But it must be borne in mind that he was somewhat inexperienced, had worked about one -week for defendant, was then laid off for a few days, and had only secured a place the morning of the accident, because anotheu-'man had failed to report for duty. His mind was upon making a coupling precisely as he had made it before under like circumstances, and with the same instrumentalities. He had not been informed, nor had he learned by experience, that occasionally a passenger engine is put upon a freight train, and therefore may have not' been in a condition to either notice or realize the situation that morning. But, had he observed the góose-néck, we are not prepared to say that this knowledge would have prevented a recovery in this action. By examining such an appendage when in its place in the- train it will be seen that it passes over the iron of the car, and strikes the buffer ■above it. On reflection, one who had noticed this, and who knew •something of the distance from the end of the iron upon a freight-car ■and the dead-wood above it, would realize the danger in holding the coupling-pin in the usual way, and by a closer examination of the neck would discover that it is not solid, but has a large vertical aperture through which the pin may be dropped, as before mentioned, although the size of this aperture indicates that it is in part designed to lighten the casting. Even if he did inspect the appliance, it would not conclusively follow that by reason óf such inspection, or .the examination which he perhaps ought to have given it, that he did or
Order affirmed.