Hinz v. Chicago, Burlington & Northern Railroad

Railroads: Collision between wild train and hand car: Death of section man: Assumption of rish. The risk of collision between a fast-running “wild ” stock train and a hand car carrying a section crew, due to a dense fog and the noise made by the hand car with the tools upon it, which rendered it impossible to see or hear the train at a distance, is held, as matter of law, to have been assumed by an experienced section man riding on the hand car, who knew that such trains might be met and that the section men were expected to look out for them and to take care of themselves.

Appeal from a judgment of the circuit court for Buffalo county: E. B. Bundy, Circuit Judge. The plaintiff’s intestate was a section man on the defendant’s railroad. On the morning of Sunday, September 9, 1894, the hand car upon which the crew of which he was one was going out over its section on its tour of inspection came in collision with one of defendant’s locomotives hauling a fast stock train, and plaintiff’s decedent was killed. The action is under the statute to recover damages for his wrongful death. Ordinarily, this crew started out to its daily “work at 7 o’clock in the morning. On Sundays it made only a tour of inspection over its section, to see that the track was all right and the roadway safe, and was permitted to choose its own time for doing it. They had agreed on the previous evening to start upon this morning at 6:25 A. M. When they started out at 6:15 it was after sunrise, but the morning was dark by reason of a fog which prevailed and was increasing in density. At this season of the year many stock trains passed over this road; as many as seven or eight trains a ■day, and sometimes more. This was additional to the ordinary business of the road. It was necessary to run them as “ wild ” trains; that is, each one was run under the orders of the. train dispatcher at La Crosse, and not according to any time card. This rendered it impracticable to notify the section men of the time of their expected passage at any given point. But the section men- knew of the fact tljat such trains were to be expected, and were instructed that they must be on the lookout for them and take care of themselves; that they would have no signals. They did not •expect notification of the approach of such trains, other than the usual signals at crossings, stations, bridges, etc. This crew were all experienced in the business and knew the situation. Plaintiff’s intestate had been at work on this •section more than two years. This morning this crew had in anticipation that they were liable to meet one of these wild trains. They went slowly, listening, and stopped twice to listen for such a train. They did not expect signals, for none were promised them, but they listened for the noise or rumble of a moving train. The noise of their own car, with the jar and rattle of their tools upon it, prevented their hearing the train. They saw it, dimly, coming through the fog, not more than 200 to 300 feet away. This was their first absolute knowledge of the approach of the train. The foreman of the crew cried, “ Jump! ” Two saved themselves by jumping. The third, plaintiff’s intestate, was struck by the engine, thrown to one side, and killed. The engineer of the train had omitted none of the customary signals at crossings, stations, bridges, etc. The whistle had been sounded almost instantly before. the collision for the bridge across the Ohippewa river, and was heard by the engineer at the drawbridge, who also heard the noise of the collision. The bell had been constantly ringing through all the distance from St. Paul, moved by a steam bell ringer. Ho regulation or custom required the whistle to be sounded at other places than crossings, stations, and bridges; and at these places it was not for a signal to section men or other employees, but only to persons who were about to use the crossings. The engineer was at his post, and attentive to the coming track. He stopped his train without delay. The train was moving rapidly. These stock trains were fast-moving trains,— nearly as fast as the passenger trains,— to alleviate the sufferings of the animals carried, and to prevent loss to their owners. After the evidence of both sides was all in, the court granted a judgment of nonsuit. This appeal is from that judgment.