No. 30,480. | Minn. | Nov 1, 1935
Lead Opinion
Plaintiff's decedent, Roy C. Rambo, had for many years been in the employ of defendant as a signal maintainer of its tracks, and *332 for some time prior to and up to the moment of his death had charge of defendant's track from Empire to Dennison, residing at Randolph, north of Dennison. He used a gasolene speeder in his work. He was run down three and a half miles south of Hampton by defendant's passenger train that passed Hampton at 5:05 p. m. December 8, 1933. He was seen leaving Hampton going south at about 4:45 p. m. The train was running at a speed of 60 miles an hour. It was a dark, cloudy evening. The sun set at 4:30 o'clock. The ground was bare. The engineer testified that as he was watching the straight track he discovered something moving thereon when at a distance therefrom of from seven to nine coach lengths. A coach length is 50 feet. He took it to be a couple of dogs. When he came within five or six coach lengths of the moving object he saw that it was a man on a speeder, and at once applied the emergency brakes and sounded the whistle repeatedly. There was a downgrade of eight-tenths of a foot per 100 feet at the place, and the train ran some 2,300 feet beyond the point where it struck and crushed the speeder before it could be stopped. Where Rambo was overtaken, and for some distance both to the north and south, the track is on an embankment or fill. The train was late. It left St. Paul seven minutes late, and at Rich Valley, 16 miles out of St.' Paul, it struck a truck at a highway crossing, killing two men. In that accident it lost the pilot of the locomotive and caused a delay of 40 or 45 minutes. The pilot was not replaced. The operation of the locomotive without a pilot was one of the acts of negligence alleged in the complaint. It was conceded that the train was engaged in interstate transportation and that Rambo was so employed at the time of the fatal accident.
Of the several acts of negligence pleaded the trial court ruled that the proof warranted the submission of one only, the alleged failure to equip the locomotive with a headlight of the illuminating power required by the federal law, which law, as declared by the federal courts, must govern this case, for both employer and employe were engaged in interstate commerce at the time of the fatality. The statutes referred to are generally known as the federal employers liability act, 45 USCA, c. 2, §§ 51-59, and the boiler inspection act *333 as amended June 7, 1924, 45 USCA, c. 1, §§ 22-34. Section 23 reads:
"It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, * * *."
Under the provisions of the last named act the following rule (No. 129) pertaining to headlights on locomotives was in force in December, 1933:
"Each locomotive used in road service between sunset and sunrise shall have a headlight which shall afford sufficient illumination to enable a person in the cab of such locomotive who possesses the usual visual capacity required of locomotive enginemen, to see in a, clear atmosphere, a dark object as large as a man of average size standing erect at a distance of at least 800 feet ahead and in front of such headlight; and such headlight must be maintained in good condition."
Since there was no motion for new trial, the assignments of error reach only the question whether there is any substantial evidence in support of the judgment. As stated, the sole act of negligence upon which the jury could base a recovery, under the charge of the court, was a violation of the quoted rule as to headlight; and, if defendant was negligent in that respect, is there sufficient evidence that the deficient headlight was the proximate cause of Rambo's death? The quantum of proof must measure up to the rule clearly and adequately stated in Baltimore O. R. Co. v. Groeger,
We do not doubt that if the headlight violated that act the evidence warranted the jury in concluding that such violation or negligence caused or contributed to cause Rambo's death. A case in point on the proposition that the violation of the regulation as to headlight might be the proximate cause of an employe's death is Chesapeake O. Ry., Co. v. Wood (C.C.A.)
Defendant insists that Rambo's negligence in not carrying lanterns on the speeder as its rules require, which rules in printed form Rambo had, and also in failing to ascertain from the agent at Hampton before he left for Randolph whether the track would be free from trains, was the proximate cause of his death. The court charged the jury that if Rambo's negligence was the sole cause of his death the verdict should be for defendant. Evidently the jury found that his negligence was not the sole cause, and it could not well have been so found if the evidence warranted a finding that a defective headlight was a proximate or contributing cause. 45 USCA, §§ 7 and
We conclude that defendant was not entitled to a directed verdict and should not have judgment notwithstanding.
The judgment is affirmed.
Dissenting Opinion
For the reason that the evidence seems conclusive that the headlight complied with the federal boiler inspection act, I am unable to concur in the foregoing opinion.
STONE, JUSTICE, took no part in the consideration or decision of this case.