48 Minn. 299 | Minn. | 1892
At and prior to the time of the accident which occasioned the injuries to the plaintiff complained of in this action, the defendants, as partners, were engaged in manufacturing lumber at their sawmill at Mesaba, in St. Louis county, and, in connection therewith, owned and operated for hauling logs to their mill a short line of railroad, running from the mill to their logging camp, a mile and one half in length. They used a locomotive engine to haul the logging cars over this line, whose coupling attachment was of the usual height and pattern, and it was also used in switching freight cars of the ordinary height used on the railway line on which their mill is situated. But the logging cars were made lower than the ordinary freight cars, and the drawheads for coupling were at least 16 inches lower than that of the engine; so that the coupler used was necessarily a long, crooked link, bent to correspond with the difference in the height of the engine and the cars. The plaintiff had been employed about the mill nearly a year before the accident, but had no experience as a brakeman upon cars, though he had previously, worked on the Omaha road as a fireman for a few months. At. or about .the 1st of May, 1890, he commenced to work at increased wages as a brakeman on the logging train. By the direction of the superintendent, one of the defendants’ employes, a former brake
Upon these facts the court charged the jury “that the difference in the height of the bumpers was so great that they would have a right to assume that the plaintiff, having been there six days, knew that the bumper of the engine overlapped that of the car.” And this was undoubtedly true. The plaintiff unquestionably saw and knew that the bumpers afforded no protection when the car was uncoupled from the engine; and he knew, or ought to have known, that if the engine was reversed, and backed up again, his position on the footboard, between the tender and the loaded car, was a dangerous one. The facts were known, and the risk was obvious. It needed no special experience or instruction to notify him of the danger. The danger of coupling or uncoupling the cars, then, was one which he must be held to have assumed.
It is not claimed that the case falls within the statutory rule established by Laws 1887, ch. 13, being “An act to define the liabilities of railroad companies in relation to damages sustained by their employes.” As the question of the construction of that act has not been fairly raised in this case, and is not referred to in the briefs of counsel, it will not be considered here.' We must assume, there'fore, that the plaintiff also took the risk of any negligent act or mistake of the engineer, in the common employment, which might result in an accident. There is no claim that the defendant did not use due care in the selection of competent and reliable servants, including the engineer in question. But the plaintiff says that there was no apparent danger. “If he had gone ahead, as he got the signal to, — if he had not come back, — there would'have been no danger.” He simply miscalculated the action of the engineer. Either through his mistake or negligence, the engine was suddenly backed up to the ear. From the evidence of the engineer, it is clear that he had an entirely different understanding as to the facts in reference to the signal; but, whichever may be right, it is evident that the acts or negligence of the engineer were among the ordinary risks of the employment, which the plaintiff assumed. Having assumed the
Order reversed.
(Opinion published 51 N. W. Rep. 373.)