146 Minn. 390 | Minn. | 1920
Action by a brakeman to recover damages for injuries received while employed in moving an interstate train for defendant, a railway company. When the evidence was in, the court directed a verdict in favor of defendant, and plaintiff appeals from an order denying his motion for a new trial.
The sole ground of negligence alleged against defendant was a defective and insecure running board on a refrigerator car in the train, the defect not being in the running board itself, but because the cover of the ice bunker had been displaced so that it protruded upon the running board. The answer denied negligence and set up as defenses contributory negligence, assumption of risk and a settlement and release. The reply alleged that the settlement and release was procured by fraud.
The train in question left St. Paul, this state, after dark on December 19, 1917, destined for Sioux City, Iowa. Plaintiff was the head brakeman. Between 3 and 4 o’clock the next morning, soon after the station at Kasota had been passed, plaintiff, provided with a lantern, undertook to reach the engine by walking on the running boards on top of the cars, and, in stepping from the running board of an ordinary freight car to that of a refrigerator car ahead, he tripped upon an obstruction on the latter and fell between the cars in such a manner that the wheels on the left side of the train severed both feet above the ankles. While at the hospital defendant’s agent obtained a settlement and release for $11,500. Plaintiff invested the money in real estate and mortgages. The chief reason assigned by the trial court for directing a verdict was that plaintiff, having the undisputed funds obtained by the settlement within his control, could hot maintain the suit without offering to restore the same to defendant.
We need not determine whether the reason assigned by the learned trial court for directing the verdict was valid, nor is it necessary to consider whether the evidence would warrant a jury in setting aside the release, for a majority of the court are convinced that there is no proof of liability or actionable negligence against defendant. Plaintiff’s testimony leaves it uncertain whether he stepped upon or beside the running board of the refrigerator car, but we shall assume that the jury could
It cannot be contended that any case of common-law negligence was made out. There is no testimony tending to show that any one of the train crew knew of the tramp’s presence, or ought to have discovered his meddling with the cover. Plaintiff must, therefore, rely entirely upon the Act of Congress of April 14, 1910, known as the Safety Appliance Act (8 Comp. St. 1916, § 8618, pp. 9358-9364). The language pertinent here reads as follows: “All cars requiring * * * secure running boards shall be equipped with * * * such running boards.” It is thoroughly settled that a violation of this statute creates an absolute liability. Burho v. Minneapolis & St. L. R. Co. 121 Minn. 326, 141 N. W. 300, and the Federal cases there cited. The question then remains: Does the fact that a trespasser surreptitiously has placed a temporary obstruction like a loose board or cover upon a running board of a railroad car show a violation of the act referred to? We think not.
The running board itself was secure and mechanically perfect. There
The cases cited and relied on by plaintiff are all predicated upon some mechanical defect in the appliance or equipment demanded by the act. In Chicago, B. & Q. Ry. Co. v. U. S. 220 U. S. 559, 31 Sup. Ct. 612, 55 L. ed. 582, there was a failure to equip with power brake as required. A mechanical defect in the coupler was proven in Delk v. St. Louis & S. F. R. Co. 220 U. S. 580, 31 Sup. Ct. 617, 55 L. ed. 590. In Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. ed. 874, and in Illinois Central R. Co. v. Williams, 242 U. S. 462, 37 Sup. Ct. 128, 61 L. ed. 437, handholds and ladders were insecurely fastened and gave way. The same was the case in Coleman v. Illinois Cent. R. Co.
In the opinion of a majority of the court no violation of the Safety Appliance Act was shown, and the verdict directed was the only verdict that could be rendered.
The order is affirmed.