121 Minn. 413 | Minn. | 1913
Richard Popplar was a rear brakeman in a train crew of defendant. On the morning of September 6, 1909, he was engaged with his crew in defendant’s railway yard at Mahnomen, Minnesota, in-making up a train. It is admitted that defendant’s road at this point is a highway of interstate commerce, but there is no evidence-that Popplar was at the time employed in interstate traffic. At the-time in question the train crew was engaged in “kicking” a car onto-a side track. The car to be “kicked” was at the rear end of a short string of cars attached to the engine. The train was backed onto the side track; when it arrived at such point that the car to be “kicked”" would of its own momentum run to the desired place, Popplar waste give a stop signal to the head brakeman, who was to transmit it to-the engineer, and the engineer was to stop the engine. As the train-slowed down, the slack would run out of the couplings and it would then be impossible to uncouple this car. It was, accordingly, part of the process of “kicking” that Popplar make the uncoupling before the engine slackened speed. This he undertook to do. Both cars were equipped with automatic couplers. At each coupling there were two pins, one on each car. The pulling of either would uncouple the cars.- Each car was equipped with a pinlifter at each coupling; as the cars stood end to end the pinlifters were on opposite sides, and they were so designed that, when in order, the brakemen could uncouple from either side without going between the cars. Popplar moved along on the ground beside the cars. At the proper time he
Plaintiff charges liability on the ground that Popplar’s death was caused by the failure of defendant to have this car equipped with couplers which could be uncoupled without the necessity of men going between the ends of the cars, as required by the Federal Safety Appliance Act.
The only eye witnesses to this accident testified that Popplar tried three or four times to pull, this pin with the lifter, that he “jerked on it and he pulled up at it” but it would not uncouple. The same witness testified that, after the accident, he himself tried to lift the pin on this car and couldn’t do it, that it came up half way and blocked. One of the defendant’s witnesses, the conductor, testified that this pin could be worked but that it “worked stiff,” and that k'
The Brown case in its facts is much like the case at bar. Brown was a switchman in a large switch yard. He was called upon at night
“To our minds, the act was intended, not to increase the difficulty of getting compensation for injuries sustained, but to decrease the 'number of cases in which injuries would happen. It abolishes, in terms, assumption of risk. And where there exists a practical necessity, such as confronted this switchman, to uncouple the cars by some means other than the defective lever, what is done is assumption of risk. Butting his arm between the cars, under such circumstances, and traveling with them, is not per se contributory negligence.”
The only substantial difference between the Brown case and the-case at bar is that, in that case, the car to be uncoupled was about midway of a string of eight cars while here it was on the end.
In this case it appears that the yards at Mahnomen were large-yards. There is no evidence as to the extent of switching operations going on at this time. One witness for defendant, when asked' as to the number of cars in the yard, could not say whether there-were 10 or 100. The conductor testified that this train was about' on time, and that he had given no orders to anybody for special
But if the rule contemplates this method, it is clear that the ■statute does not. The necessity of going between the ears while standing is one of the things which, for obvious reasons, the statute was designed to avoid. That is precisely what the plaintiff in the Lindsay case, supra, did do. He received his injury in so doing, .•and it was urged there that his course was contributory negligence as .a matter of law. We cannot, accordingly, hold, as a matter of law, that Popplar should have stopped the train and stepped between the cars. Nor can we hold that it conclusively appears that reasonable prudence required that he should have stopped the train .and walked around to the other side, a course which his superior, the conductor of his train, declared not necessary. We hold that the jury might fairly find from all the evidence that a practical -necessity existed for the disobedience of this rule and that the course
[27 St. 531 (U. S. Comp. St. 1901, p. 3174) ].
[35 St. 65, c. 149 (U. S. Comp. St. Supp. 1911, p. 1322)].