Winczewski v. Winona & Western Railway Co.

START, C. J. On December 19, 1898, the plaintiff was injured by being struck by pieces of a hand car in a collision between it and the locomotive of one of defendant’s passenger trains. He brought this action to recover damages for his injuries on the ground that they were caused by the negligence of the defendant. The defense was a denial of any negligence on the part of the defendant, and, further, that the plaintiff was guilty of contributory negligence in the premises. Verdict for the plaintiff for $1,009.75, and the defendant [246] appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. The most important question raised by the assignments of error is whether the verdict is sustained by the evidence. Counsel for the defendant insist that it is not, because the evidence fails to show any negligence on the part of the defendant, but that it conclusively establishes the contributory negligence of the plaintiff. We have reached the conclusion, from a consideration of the' record, that the question of the defendant’s alleged negligence in running its train at a dangerous rate of speed, and ahead-of schedule time, and in failing to check its speed in time to avoid the collision, was one of fact for the jury. The verdict in this respect is fairly sustained by the evidence. A majority of the court are of the opinion that the question of the contributory negligence of the plaintiff was a question of fact, and that the verdict in this respect is also sustained by the evidence. There was but little conflict in the evidence on this question, and it fairly tends to establish these facts: The place of the accident was that part of the defendant’s roadbed and track in the city of Winona lying between the crossing at the track of the Chicago, Milwaukee & St. Paul Railway Company on the east, and Mankato avenue on the west. The defendant’s track between these points was approximately a mile and a quarter in length, and consisted of a fill from fofir to nine feet high, fifteen feet wide on the top, with its sides riprapped. It ran through a level valley, and two-fifths of a mile west from the Milwaukee crossing was a switch known as “Hamilton’s switch,” at which point the roadbed was about eight feet high: The plaintiff was, and had been for four years, employed as a section man on this part of the roadbed under William Connors, the defendant’s section foreman. On the morning of the accident, the plaintiff, with the foreman, was at Mankato avenue, and they started for the Milwaukee crossing on a hand car, at which point the plaintiff knew that the defendant’s passenger train from the west was due in ten minutes thereafter, and not before. He also knew that the trainmen were required to reduce the speed of the train at the crossing of Mankato avenue to eight miles an hour. Both the plaintiff and the [247] foreman, in driving the hand car, faced to the east, with their backs to the west, whence the train was coming. The plaintiff, before they reached Hamilton’s switch, looked back, and saw no train coming; but, after they had passed the switch, he again looked back, and saw the train coming at the rate of thirty-five or forty miles an hour, about thirteen hundred feet away. He immediately jumped on the brake of the hand car, and it was stopped about one hundred feet east of the switch. The foreman jumped from the car, motioned to the plaintiff as he ran towards the switch, taking his keys from his pocket, as if to open the switch, and the plaintiff shoved the car towards the switch. The foreman, however, did not open the switch, but ran back to the end of the hand car towards the approaching train, and lifted that end of the car from the main track to the switch, and the plaintiff lifted the other end upon the switch about eight inches. They succeeded in getting the front wheels and one hind wheel of the car off the main track, and the whole car was within three or four seconds of clearing the main track, when the plaintiff, seeing that a collision was inevitable, let go of the car, and jumped, but when about ten feet away he was struck by flying pieces of the hand car, his leg was broken, and his hip fractured. The foreman stuck to the car, and was killed by the collision. The defendant claims that the plaintiff was guilty of contributory negligence in leaving Mankato avenue knowing that the train was due at the Milwaukee crossing in ten minutes, and also in driving the hand car with his back to the west, whence the train was coming. Neither act was negligence as a matter of law, for different minds might reasonably draw different conclusions as to the acts of the plaintiff in view of the facts then known to him. Besides, were it otherwise, neither of these acts was the proximate cause of his injury, for he discovered the approaching train in ample time to have saved himself if he had not attempted to get the hand car out of the way of it. It is very clear that if he had thought only of himself when he saw the train coming, and had run away, or even if he had dumped the car down the embankment into the ditch eight feet below, he would have been safe. But because he attempted to get the hand car out of the way of the train, and avoid [248] the threatened collision, and at the same time to save the car by getting it onto the switch, it is claimed that he was guilty of contributory negligence, and cannot recover for his injuries, although the defendant may have been negligent in the premises. It must be admitted that the plaintiff and his foreman erred in judgment, but it is easy to be wise after the fact, and the plaintiff’s acts must be judged by the facts as they appeared to him at the time. An unexpected emergency arose. The train came rushing upon the car ahead of time, and the situation was one of peril well calculated to disturb his judgment. His first impulse was to avoid the collision, and also to save the defendant’s property, without regard to his own safety, and he made the attempt. Can it. be held as a matter of law that, because he misjudged the length of time it would take to get the car upon the switch by three seconds, he was guilty of contributory negligence? When employees are loyal to duty, and face known peril to save the property of their employers, and perchance human lives, courts should be very slow in convicting them, as a matter of law, of contributory negligence, after they have been acquitted of the charge by the verdict of a jury. If the plaintiff and his foreman had been run down by the passenger train before they had discovered it, it would be difficult to resist the conclusion that they were thus caught by reason of their own negligence. But such is not this case, for the one was killed and the other injured because, after they discovered their peril, they did not take to their heels, but stopped, and made the attempt to save the defendant’s property, and failed by less than four seconds. The question of the plaintiff’s contributory negligence, then, was, under these circumstances, a question for the jury. The other assignments of error have been considered, and found to be without merit. Order affirmed.