Bryant v. Burlington, Cedar Rapids & Northern R'y Co.

Seevers, J. The evidence tended to- show that during two days previous to the accident there prevailed an unusual snow-storm, accompanied by a severe wind, and it was very cold. No train had passed over the road for twenty-four hours because of the cold weather and snow-drifts. On the day of the accident the train in question arrived at Traer from the north. [307] It was a passenger train pulled by two engines, and to the forward engine a snow-plow was attached. The plow was left at Traer, and the train, drawn by two engines, proceeded south, and about five miles from Traer the accident occurred. The pilot on the forward engine had the spaces therein filled with strips of wood. A gang of shovelers started from Traer before the train, with orders to clear the track. They arrived at the place of the accident a short time prior to the train. The track was in good condition but for the snow-drifts, and the train was in all respects properly equipped, except that there was no snow-plow, and it was drawn by two engines. At the place of the accident there was a snow-drift which possibly was two feet deep on one rail, and six inches on the other. It was packed so hard,by the force of the wind that it bore the weight of a man. Intermingled with it was dirt and gravel. The drift could be seen by the employes on the, train, as they approached it, for a mile at least. The train was run into the drift at a faster speed than trains were ordinarily run on the road, but there is no evidence tending to show that such rate of speed was greater than ordinary when “ bucking snow.” Both engines' left the track because the snow was so compact that probably the forward one “ lifted; ” that is, was raised above the track by the snow. There can be no doubt under the evidence that the engines left the track because of the snow, and any other finding should have been promptly set aside because unsupported by the evidence. Such being the material and, we may say, undisputed facts, did the court err in directing the jury to find for the defendant? or, in other words, is there any evidence of negligence? 1. BAILassumedi>yks “bucking: snow' I. In this latitude, storms of more or less severity, like the one in question, frequently occur. It is a duty railroad companies owe to the public to remove snow from the 1 trac^> an(I operate the road as soon as it can be done, by the exercise of great diligence, and the. use of all the means and appliances at their command. The company has the undoubted right to adopt such [308] methods for that purpose as its best judgment may dictate. It may be that it would not have the right to adopt doubtful experiments. Experience has undoubtedly demonstrated in what manlier the required duty can be best performed. Such methods, it must be assumed, are known to the companies and its employes. The latter, therefore, when they undertake the performance of any duty which requires them to engage in “ bucking snow, ” assume the usual and ordinary hazards of their occupation; and, if the effort to remove the snow by that method is made in the manner in common use, they have no right to complain if an accident occurs. Morse v. Minneapolis & St. L. R'y Co., 30 Minn., 465; Nalor v. Chicago & N. W. R'y Co., 53 Wis., 661, and authorities cited; Howland v. Milwaukee, L. S. & W. R'y Co., 54 Wis., 226. 2.-: killed while “bucking snow:” negiigence : evidence: II. The material question, therefore, is, whether there is any evidence of negligence in this case. The burden to estab-r lisli it was on .the plaintiff. There is no evidence which tends to show that the train in question . • T was not equipped m the ordinary manner, it x x x seems to be assumed by counsel for the appellant that it was negligence to start the train without a snow-plow and with two engines, but this cannot be so unless this was an unusual mode, and there is no evidence which so shows. On the contrary, we are impressed that the mode adopted on this occasion is usual and ordinary on all .well conducted roads in this latitude. The defendant would not be justified in relying on shovelers to remove such obstruction, and yet it did what it could in this direction. Snow can only be expeditiously removed by the use of trains, and, as we can readily see, when so engaged the train must be run at such speed as will overcome the resistance of the snow-drift. • There is no evidence which tends to show that the speed of the train in question was greater than it should have been for the purpose of accomplishing 'the passage of the train. It is true, the engineer on the forward engine saw this drift; and, as there is no evidence to the contrary, it must be assumed that he was [309] a careful and competent engineer. He undoubtedly knew there was some danger incurred in running his engine and train into the drift. This danger he shared with other employes; and it must be presumed that he would not have done so if he thought he incurred danger of bodily harm. The evidence does not show that the drift in question was unusual. There was not, therefore, anything to warn the engineer that the hazard was greater than is ordinarily incurred by train employes when engaged in “ bucking snow. ” 3e^denoe°use of deposition. III. One Wilson was foreman of the gang of shovelers, and his deposition had been taken by appellant; but, as he was present in court, the defendant objected to the reading of the deposition. He was thereupon , examined orally. Alter the plaintiff: had closed his evidence, and the defendant had moved the court to direct the jury to find a verdict for it, the plaintiff asked and obtained leave to file an amendment to his petition, stating that it was Wilson’s duty to inspect the track, and keep it free from snow and ice at the place where the accident occurred, and that he had knowledge of the snow drift, its extent and compactness, and that he failed and neglected to warn the employes on the train that it was dangerous to run the train into it, and that Wilson knew of the approach of the train a sufficient length of time to permit him to do so. Counsel for the plaintiff' stated that they desired to examine Wilson as a witness, but he had left the court room, although they had requested him to remain; and thereupon they asked leave to read his deposition in evidence. To this the defendant objected on the ground that there was a new issue, and they desired to and had had no opportunity to cross-examine Wilson as to such issue. The objection was sustained, and this ruling is undoubtedly correct. Wilson did not signal the train, and, clearly, it was not his duty to do so unless he had examined the drift and, as a reasonable and judicious man, reached the conclusion that the attempt should not be made to run through it. [310] The record, before us fails to show that Wilson had examined the drift, nor is there evidence which tends to show that it was not of the usual and ordinary character in every respect. We therefore are of the opinion that the judgment of the circuit court must be Aeeiemed.