135 Minn. 72 | Minn. | 1916
On July 2, 1915, the plaintiff, who had been in the service of defendant
His employer furnished hand-cars which conveyed the sectionmen to and from their work and transported the materials and implements necessary thereto. The hand-car in use on that day was of the usual type, with black wheels, a brownish red floor or platform about two feet from the top of the rail and handles for operating it placed at a height of three or four feet above the platform.
Defendant’s railroad track is straight and level for about one mile east and one mile west of Donnelly station in Stevens county, Minnesota. The view along the track is unobstructed by buildings, weeds, trees or shrubs, so that a person standing on the track one mile west of Donnelly could, on a clear day, see and distinguish persons or objects on the track at a distance of two miles to the east.
On the second of July, which was a bright, clear, unclouded day, at about 11 o’clock in the morning, plaintiff and another section hand, named Leir, had taken the hand-car to a point some 3,500 feet east of Donnelly, where they left it on the main track while they were working in the immediate vicinity. As they were about to start back with the hand-car, their attention was called to a man in an automobile in the public road, which at that point was very close to the right of way. The automobile seemed to be stalled in the mud. The driver called to plaintiff and Leir who went towards the automobile which was about 100 feet distant from the hand-car. Before they started to help the motorist they looked up and down the track to see if any train was in sight; but they neither saw nor heard one. They went to the stalled automobile and assisted the driver in getting it out of the rut. They had been there about five minutes when they discovered a train approaching from the west. They immediately ran towards the hand-car to take it off the track, as was their duty, before the train arrived, there being, as they knew, danger to both life and property if a collision occurred. When about 50 feet from the hand-ear they saw the train passing the section house, which is east of the depot and a little over 3,000 feet from the point where the hand
The action was brought under the provisions of the Federal Employer’s Liability Act, and was tried to a jury which returned a verdict for the plaintiff. Defendant made a blended motion for judgment notwithstanding the verdict or for a new trial. The motion was denied. Defendant appeals.
Appellant argues that there is not sufficient evidence to support the verdict; that the court erred in admitting the testimony of the plaintiff and Leir as to the distance in which the train could have been brought to a full stop; and that a certain instruction given by the court to the jury was erroneous.
There was evidence tending to show that the engineer of the train saw this hand-ear when he was more than half a mile away from it; that he knew that sectionmen must be working in the immediate vicinity of the hand-car; that he blew warning signals to notify them to take the obstruction from the track; that he saw them running towards the handcar and attempting to remove it, and that he could have stopped the
The trial court is primarily the judge as to whether or not a sufficient foundation has been laid for the admission of evidence of this kind. It is a matter largely within its discretion. Graseth v. Northwestern Knitting Co. 128 Minn. 245, 150 N. W. 804; Palon v. Great Northern Ry. Co. 129 Minn. 101, 151 N. W. 894. While it may not seem to be of great value, the weight of such evidence is for the jury. The evidence furnished by the speed recorded in some respects corroborates the testimony of these witnesses. The speed recorder, which shows that the train was traveling at about 45 miles per hour, also shows this very stop. The evidence furnished by this device, when considered in connection with the testimony of the witness Winney, would justify the jury in finding that this stop was ■ made within 1,300 feet.
“If after the engineer saw the hand-car in question on the track he knew and believed that the sounding and blowing of the danger whistle by him was liable to,, and probably would, call the plaintiff or other men to the hand-car for the purpose of removing it from the track, the engineer would be charged with substantially the same line of conduct, that is, it. would be his duty to exercise reasonable care to avoid injury to such person or persons as the sounding of the danger whistle, in his judgment, might call to the car for the purpose of removing it from the track.”
This is assigned as error.
We cannot agree with defendant that this instruction introduced a new and separate ground of negligence into the case. True, the complaint does not charge that the sounding of the whistle was negligence. But it is clear that the engineer sounded the whistle for the purpose of having the hand-car removed from the track. He, therefore, knew and believed that “the sounding and blowing of the danger whistle by him was liable to, and probably would, call the plaintiff or other men to the hand-car for the purpose of removing it from the track,” and it would be his duty to exercise reasonable care to avoid injury to such persons.
Order affirmed.