HARDY V. MINNEAPOLIS & ST. L. RY. CO.
perfect cause or action which' she could maintain in court the railroad company for whatever damages a jury might a!'lsess in her favor. If, having this right of action, she has, since her husband's death, voluntarilyand without deception practiced upon her, released it, induced tq do so by the certain benefit which would thereby accrue to her husband's mother, I can see no ground upon which the release can be treated u.s a nullity. The demurrers are sustained.
,HARDY V. MINNEAPOLIS
& ST. L. Ry. Co.
(Circuit Court, D. Minnesota. November 14, 1888.)
In an action for negligence, where the evidence on the material issues is ,conflicting, the court will not set aside a verdict, though it would have been , entirely satisfied if the result had been the other way.
MASTER ANI> SERVANT-NEGLIGENCE OF VICE-PRINCIPAL.
NEGLIGENCE-PROVINCE OF COURT AND JURY.
M., defendants' yard-master, mounted the switch-engine, and, while acting !Ls engineer, gave deceased directions to assist in uncoupling cars. The latter, while so employed, was run over and killed. Held, that the court properly refused an instruction that, while M. was acting as engineer, he was a ,fellow-servant of deceased, and defendant would not be liable for his acts as such. Though actually engaged as an engineer, he was none the less yardmaster, and entitled to be obeyed in the work of making up trains.
In an action by the next of kin to recover damages for the negligent killing of the deceased. the damages being limited to the pecuniary loss, evidence to show the or bad reputation of such next of kin is inadmissible to affect that questIOn.
DEaTH BY WRONGFUL ACT-AcTION-EvIDENCE.
At Law. On motion for new trial. Action by Emeline A. Hardy, as administratrix of the estate of Frank S.Hardy, deceased, against the Minneapolis & St. Louis Railway Company and the Burlington, Cedar Rapids & Northern Railway Company, 'to recover damages for the alleged negligent killing of her intestate. There was a verdict for plaintiff, and defendants moved for flo new trial. D. F.Morgan and W. Boumrt.n, for plaintiff. J. D; Springer and F. D. Larrabee, for defendants. SarnAs, J. The question of negligence, upon which this case turned before the jury, was whether the deceased, Frank Hardy, was required by his superior officer, tOo'wit, Murphy, the yard-master, to perform the duties of a switchman, and as such to go between the cars of the moving train for the purpose of uncoupling the same. There can be no doubt that a person who performs sueh duties is placed in a dangerous position. The deceased, a lad of 16, had been engaged to perform the ,duties of a call-boy at the yard of defendants at Albert Lea. Hemet his death by being crushed between two cars in the defendants' yard, whileerigaged ihuncouplil1g the same. The question offact upon v .36F.no.11-42
which .thecase depended, ",as whether the caused the deceased to undertake the duties of So switchman, and in the performance thereof to go between the moving cars. The jury found the issue for the plaintiff, and it is strong1Y urged in support of the motion for new trial that there was not sufficient evidence to justify the jury in so finding. It cannot be questioned the evidence is not at all clear upon this point. One witness for plaintiff, who testified to facts strongly supporting plaintiff's theory of the case, was sough} to be impeached in many ways. The question of his veracity, and the weight to be given to his evidence, if any, was fairly submitted to the jury, whose province it was to determine the question. The court does not know whether the jury gave any credence to the witness or not. Should another trial be had, and the same witness should testify on behalfo! plaintiff, the court would be compelled to submit the same question touP-hing the credibility of the witness to the jury. Leaving the testimony of this witness outof the case, there is still left some evidence tending to support the theory of the plaintiff and the verdict of the jury. Murphy, the yard-master, who had charge oithe ellgine at the time of the accident. testified that he did not order the deceased to go between thE} cars, but he also just 'as positively testified that he did not receive or act on any signal given through the deceased, and din not notice him except as he saw him go towards the cars. In this latter important particular Murphy was expressly contradictedby the testimony of the witnesses Johnson and Marsh, introduced on behalfof the defendants. The latter was the bra:keman, who was on the rear end of the two detached cars, and he testified that, 1?eing on the rear endofthe cars, he could not give the signals to Murphy upon the engine direct, aad that be gave a signal to go ahead, which was repeated by Frank Hardy to Murphy, who thereupon pulled ahead; and then, when the engine had cleared the switch, he gave the signal to back down to Hardy, who repeated it to Murphy, and the latter then backen the engine and ear attached down towards the cars on which the. witness was standing. The witness Johnson was not an emplQye of the defendants. He testified that he saw Hardy come down by the engine; that deceased was between himself and Murphy, who had his head out of the cab window; that Murphy was looking northward, that is, toward/il Hardy, which would be in the contrary direction from the cars on which Marsh was then standing; that he saw Hardy give a signal with his hands, and thereupon Murphy pulled in his head, and the engine began moving, and the deceased stepped in between the cars,and then the accident happened. This testimony,coming from witnesses introduced on behalf of the defendants, clearly shows that Murphy expected to receive signals from Hardy, and that he acted upon them when received; otherwise he would not, as to by Johnson, have been looking northward from his cab, and watching Hardy, instead of looking towards the cars. Murphy himself a4mits that he saw Hardy go towards the cars, just as J ohuson testified that he did. The evidence, therefore, clearly proves that ,Hardy was engaged in the performance of the duties of a switchman, and that Murphy it, and accepted such services, and acted thereon, at
HARDY V.MU\NEAPOLIS & ST. I.. RY.
least so far as the giving f:\nd receiving signals were concerned. It no less clearly appears that Hardy, after recei ving andgiving the signals to Murphy, then undertook to perform the next duty, which ordinarily would have been expected of a switchman in his position,. to-wit, that of going between the tender and car, for the purpose of uncoupl1ng the same. The theory of the plainttff was that he undertook this duty by the direction or procurement of Murphy, who was his superior officer. and who thus subjected him to the dangers incident to such a position. The theory of the defendants was that Hardy voluntarily placed himself in this positiotl; that he was a bright, ambitious young fellow, desirous of pushing himself forward. in the service of the company; and that he undertook to uncouple the cars without direction or control on the part of Murphy. 'fhe jury was instructed that, to enable plaintiff to recover. it must be shown that Hardy went between the cars by the direction or procurement of Murphy, the yard-master, and that, if he went between the cars of his own volition, without being directed or required so te. do by Murphy. then plaintiff could not recover. There are circumstances proven which tend strongly to support the theory of the plaintiff, although no witness testified that he heard Murphy order or direct Hardy to go between the cars, or to make the uncoupling. Unless, therefore. it was the duty of the court to instruct the jury, as a matter of law, that it was incumbent on plaintiff to prove that some express command or direction was given by word of mouth by Murphy to Hardy to thus go between the cars, all that could be done was to submit the question as one of fact to the jury for their determination in view of all the facts disclosed in the evidence. This was done, and, thejury having settled the question of fact thus submitted to them. the court is not justified in reversing their fi nding simply because the evidence is circumstantial. The case is of such a character that a verdict for the defendant would have been entirely satisfactory to the court. Yet it cannot be said that the verdictis entirely without snpport, even taking the evidence introduced by defendant solely into account. Under; these circnmstances the verdict cannot be set aside on the ground that it is unsupported by evidence. It is also urged in suppdrtofthe motion for new trial that the court erred in not instructing the jury that when Murphy, the yard-master, went upon the engine to act as engineer thereon, he then ceased to be a superior officer or vice-principal, and his negligence, if proven, would be that of a coemploye, for which, under the law of Minnesota, as it was when the accident happened, the common mastet: would not be liable. See Quinn v. Lighterage Co., 23 Fed. Rep. 363. If the accident had been caused through negligence in the handling or running of the engine by Murphy, then we would have had a state of facts which would have presented the question ruled on in the case just cited. The negligence relied on in the case on trial was the allegation that the yard-master required or directed Hanly to undertake the dangerous duty of uncoupling the cars, and thereby necessarily subjected him to a risk greater than that pertaining to his proper employment. When Murphy undertook the duty of running the eng'll1e,
he did not cease to be yard-master. The duty of seeing to the making up of the trains in the yard belonged to him, as yard-master. If he directed Hardy to undertake the duties of a switchman, which the jury have found he did, he so directed him as yard-master, and not as an engineer. If, when Murphy was on the engine, he had given him some proper order in connection with his duties as call-boy, the latter could uot have justified a refusal to obey the same on the ground that Murphy had ceased to be yard-master simply because he had assumed the additional duties of an engiueer for the moment. It is the negligence of Murphy as yard-master, and not as engineer, for which the company is held liable, and there is nothing in the evidence which would justify the finding that Murphy had ceased to occupy the position of a superior'towards the dec::ased when the latter was called upon to act as a switchman. Exception was taken at the trial to the exclusion of certain depositions taken for the purpose of attacking the reputation of the ,plaintiff. The ruling was that evidence tending to. show the wealth or means of support of the plaintiff, she being oneoi. the next ,of kin, was admissible, but not evidence merely tending to show the reputa.tion ·01' the plaintiff. This evidence,if admitted, couidollly affect the amOU:I1t of recovery, and it seemed to the court upon the trial that it was hnn1aterial. In cases of this character, where the damages are limited to"tb6pecuniary loss of the next of kin, caused by the death of the relative, is it permissible, in order to inCl;ease or diminish the amount of the da,mages, for either party to prove that the next of kin are possessed of a high character, or the contrary? If it be true that a poor reputation should minish the damages, then a good reputation should increase the same. Yet this cannot be true. There may be cases pt'esenting peouliar feair ures in which such evidence might be competent,but in a ca.selikethe present, the introduction of such evidence would not enlighten the jury upon the question of loss, caused by the death of the son and 'brother, but it would introduce an issue which would,unless it was clearly sus:tained, and might even then, tend to prejudice the jury against the .de,. fendants, ana lead to the reI1dition of larger verdicts than would other,. wise be given: The nlotionfor new triaLis therefore.overruled. For,the information of counsel, I would say that thecollclusionsul1nounced on the several points relied on in support of the motion for new trial are concurred in by 'Judge BREWER, although the opinion itself has not bees submitted to him.
.:. i ,
.' · ;
H'INTOSH II·. <;HICAGO, M. & ST.P. BY. CO.
McINTOSH 'D. CHICAGO, M.
& ST. P. Ry.
(Oircuit Oourt, D. Minne80ta. November 14,1888.)
RAILROAD COMPANIES-INJURIES AT CROSSINGS-'-CONTRIBUTORY NEGLiGENCEPROVINCE OF JURY.
Deceased was driving a heavily loaded wagon on a street in a large city, crossed at ita intersection with another street by four tracks of defendant's road. A gate was usually lowered across the street, controlled by men in an observation tower. who, being unable to see by reason of the fog, were at the time acting as flag-men, the gate being raised. Several teams were in waiting for a passing freight train, and when the track was clear they attempted to cross, deceased being last. As his horses were on the rails an alarm was given of a passenger train approaching, and two men on the wagon with de-. ceased jumped off safely·. Deceased struck his horses to urge them forward, the wagon was dashed against the curb·stone. the foot-board upon which de-' ceased's feet rested broke, he fell under the wagon wheels. and was killed; the horses escaping.. It was uncertain whether deceased attempted to jump. and springing from the foot-.board broke it. There was evidence that it was defective,. but none that deceased knew it. and one of. the o'ther men who" was heavier than deceased sprang off of it without its breaking.' Held noev- ' idence of contributory negligence in'the use of the defective foot-board, to require the submission of the question to the jury
'AtLaw. On motion for new trial. . ' . ' 'Action by James W. McIntosh,administrator of William Fry, de-. the :Milwaukee & St. Paul RailwliY Campany, for negiigentlycausing intestate's death. Verdict for plaintiff, and defend,.' ant moves for a new trial. , ' , Hunt &- Wilkinson, Howard &- Richardson, and J.'H. RandaU, for Plain,., tiff. ., . . ,'Flandrau, Squires &- Cutcheon,. for defendant·
. SRIRAS, J. Onthe31st day of October, 1887, WilIil).IIl Fry was engaged in the business of teamingin the city of Minneapolis, and on the morning of that day he dro.ve .his wagon and team along Tenth !iv,enue, . to the point where the same crosses the line of defendant's railway; it being his intent to pass over the railway track. The wagon was heavily loaded with asbes and garbage; there being on it two men besi4es Fry,· who was driving the team. At the point of intersection of Tenth avenue and the railway track, which is likewise the point of intersection of worked by a pneu'Third street, the railway company had erected matic pump in a tower, wllich were lowered across the streets . when a train. was approaching. On the' morning in question a rqg had prevaileq, so that the men could not fromthe tower watch track, and they had left the gates upraised, and hild peen a9ting as flagupon the ground. A short-line train St. Paul was dlfe at ,crossing about the time Fry drove down Tenthavenue, and th&re was .$0 afreight traiuator on the crossing; so that all ipeither directionOl;!' Tenth avenue or Third were, comp'eIled 'to" The freight tr,ainwas being m;oved out ofthe way, and soonll.s :It,.()leared the9f<?ssing the way. \ViiS for of teams; '.
", . .