145 Minn. 240 | Minn. | 1920
The question whether Thayer had been advised, or had reason to know, that this box car was to be moved, is of great importance. His conduct would indicate that he did not know it. The position in which he stood would indicate that he did not know it. There had been nothing in the movement of the engine up to the time he left it that would advise him of it. It pursued the course that it would have pursued had the crew been going to the round house, and, except for the box car, there was apparently nothing more to- do. There was no evidence that Thayer knew that the box car was afoul the switch, or that he knew of the purpose to again move it, except the following: Palmatier testified that, as the crew started southwesterly, the foreman, Joseph, was standing on one end of
We are of the opinion that the evidence does not conclusively show that Thayer knew, or had reason to believe, that the car was to be moved, or that any one, at least other than Palmatier, thought he knew it. There is no evidence that the engineer had reason to believe that Thayer had been so advised.
Defendant invokes the familiar rule that in a railroad yard, where engines are constantly moving to and fro, and all men employed about the yard know that moving trains and engines are liable to be encountered on any track at any time, there is ordinarily no obligation on the part of the engineer of a switch engine, to give warning of its approach to employees who are familiar with the operations of the yard. Beecroft v. Great Northern Ry. Co. 134 Minn. 86, 158 N. W. 800; Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. ed. 758. We do not think this rule is applicable. It is not the mere fact that the employee is employed in a railroad yard that gives rise to this rule. It is not the multiplicity of tracks that gives rise to this rule, but the multiplicity of engines or-trains, and where there is but one engine operating in a railroad yard, the rules for determining negligence toward a member of tEe engine crew, are substantially the same in a railroad yard as in- any other place. There were many tracks in this yard, but at that time only one engine, and there is no evidence as to any other cars. The situation-is not much different from what it would be in any locality with sufficient tracks to permit the movements that were in fact made. We think the evidence is such as to make the question whether defendant’s employees'
If Thayer was not aware of the proposed movement of the box car, he did not as a matter of law assume the risk of danger therefrom.
Judgment affirmed.