Schneider v. Chicago, Burlington & Northern Railroad

Gtlfillan, C. J. 1

The questions of defendant’s negligence, and contributory negligence of plaintiff, were on the evidence for the jury, and their finding was warranted by the evidence. The eighth assignment of error, based on the court’s refusal to charge that “if the jury find that the engineer blew the whistle before starting the engine, then the plaintiff cannot recover,” involves the question raised by the court receiving the general verdict, when the jury could not agree upon the special question submitted to them, “Did the engineer Minehan sound his whistle before starting his engine, and after the conductor Eeece had signalled to go ahead ?’■ If a finding that the whistle was so sounded would have been decisive against plaintiff’s right to recover, either because establishing his contributory negligence or establishing that defendant was not negligent, then the request ought to have been given, and also the general verdict ought not to have been received without a finding upon the question specially submitted. But unless a finding on that question in the affirmative would have been inconsistent with and have controlled the general verdict, so that defendant would have been entitled to'judgment notwithstanding the general verdict, then a finding on the question would have been immaterial. Had the evidence been'such that the general verdict must rest solely on the fact that the whistle was not sounded, the verdict could not stand unless the jury could find that fact. The evidence, however, was such that the jury might find that defendant was and plaintiff was not negligent, even though the whistle was *71 sounded. The significance of sounding the whistle or ringing the bell depended on its being the proper signal that the engine was about to start forward, so that those working about the engine or the train, hearing it, might take care of themselves. As to which was the proper signal for starting ahead there was a conflict of evidence. That on the part of the plaintiff was to the effect that the only customary and proper warning at that time and place, that the engine was about to start ahead, was by ringing the bell. If that was the fact, — and on the evidence the jury might find it so,* — it would justify the conclusions, the bell not having been rung, included in the general verdict, that there was negligence of defendant and none on the part of plaintiff; so that a finding in the affirmative on the question submitted would not have been inconsistent with the finding in the general verdict that there was negligence on one side and none on the other. However the jury might have answered the question, the plaintiff would have been entitled to judgment. As the evidence stood, the question was not broad enough to cover the case. The defendant claims that it is conceded by the complaint that if either the bell was rung or the whistle sounded there was no negligence on the part of the defendant. However that might be upon a literal reading of the complaint, we are satisfied from the course of the trial that the same was not tried on that theory of the complaint, but on the theory that failure to ring the bell might be negligence, though the whistle was sounded. The court was therefore right in receiving the general verdict, though the question was not answered.

The defendant claims that, with respect to the work upon which plaintiff was employed at the time of the injury, the case comes within the proviso to section 1, c. 13, Laws 1887, — the act which makes railroad companies generally liable for injuries done one of their employes through the negligence of a co-employe. The defendant, in 1885, 1886, and 1887, built a new road from Chicago to St. Paul. At the tim'e óf the injury it had been open to public travel and use for about six months. It was filling a swampy piece of land in St. Paul for a yard, doing the work by means of a temporary construction track, and of engines and cars passing over it, carrying earth for the purpose of filling. Of course, this temporary track was not open *72 to nor intended for public travel or use. The plaintiff was employed as fireman on one of the engines so used, and the negligence complained of was that of the engineer in starting his engine ahead without warning to plaintiff, who was at the time in a dangerous position. The proviso reads: “That nothing in this act shall be so construed as to render any railroad company liable for damages sustained by any employe, agent, or servant while engaged in the construction of a new road, or any part thereof, not open to public travel or use.” It might have been difficult to determine what within the proviso is to be regarded as a new, as distinguished from an old, road, were it not for the words, “not open to public travel or use.” The legislature manifestly intended that having the road so open should mark the difference between old and new, within the meaning of the proviso. The defendant’s road, therefore, so far as thus open, to wit, from Chicago to St. Paul, was not a “new road,” within the proviso. Taking it to be, between the termini mentioned, an old road, then work upon the yard at St. Paul, intended to be used in connection with, as a part of, and to facilitate the business of, such old road, was not the construction of a new road or part thereof. It is difficult to construe the proviso, except by adhering as closely as possible to its terms. We cannot see any entirely satisfactory reason as to its general purpose that would account for the distinction clearly made by its terms between constructing a new road or part thereof and constructing a part of an old road. Indeed, it would be hard to suggest any reason for the proviso, or for any difference in the liability of a railroad company, except such as might be based on the peculiar hazards attending the operating of engines and trains, —hazards which exist whether the engines and trains are operated in constructing a new road or in using one already constructed. That these were the dangers the legislature had in mind in passing the act was, in effect, held in Lavallee v. St. Paul, M. & M. Ry. Co., 40 Minn. 249 , ( 41 N. W. Rep. 974 .) We cannot see why the proviso should exclude injuries from such hazards in constructing a new road. But the legislature has seen fit to do so. The case is not within the proviso.

Order affirmed.

Collins, J., took no part in this decision.