NORTHERN PAC. R. CO. v. MORTENSON

NORTHERN PAC. R. CO. v. MORTENSON. (Circuit Court of Appeals, Eighth Circuit. September 10, 1894.) No. 419. 1. Master and Servant—Injuries to Railway Brakeman — Bridges with Overhead Beams—Province of Jury. Where a brakeman, standing on the running board of a furniture car. wbicb is higher than box cars, in the discharge of his duty, was struck by the overhead tie beams of a bridge which the train was crossing, held, that it was the province of the jury to say whether the company was negligent in maintaining a bridge haying such low beams, without giving warning by telltales or otherwise. 2. Same—Contributory Negligence—Province of Jury. The brakeman having crossed the bridge several times standing on top of box cars, held, further, that it was a question for the jury whether he was guilty of contributory negligence in not ascertaining, by measurement or accurate observation, that he could not safely pass while standing on the running board of a furniture ear. 3. Trial—Witness Fixing Date by Memorandum — Right of Inspection — Error without Prejudice. Plaintiff, in testifying as to the length of time he was in defendant's employ, fixed the date of entering the service by a memorandum, but the court refused "to permit defendant to inspect the memorandum. Held, that this was error, but, the length of his service being fully established by other evidence, tbe error was without prejudice. In Error to tbe Circuit Court of tbe United States for tbe District of Minnesota. This was an action by Andrew Mortenson against tbe Northern Pacific Railroad Company to recover damages for personal injuries. Verdict and judgment were given for plaintiff, and defendant sued out this writ of error. C. I). O'Brien (J. H. .Mi: eh ell, Jr., Tilden R. Selioes, and T. D. O’Brien, on the brief), for plaintiff in error. O. A. Beverauce (W. B. McOIenahan, W. A. Fleming, 0. K. Davis,, and F. B. Kellogg, on the brief), for defendant in error. Before CALDWELL and BAKBOEN, Circuit Judges. [MAJORITY — CALDWELL, Circuit Judge.] CALDWELL, Circuit Judge. The defendant in error was in the employ of the plaintiff in error as head brakeman on a, freight 'train mmiing between Brainerd, Winn., and Fargo, 17. D. In making this trip the train crossed a bridge having overhead tie beams. This bridge was within the limits of the company’s yards at Fargo. The duties of the defendant in error required him to be upon the top of his train while passing through 1he Fargo yards and over this bridge. .His usual position was on top of the second or third car from the engine, and he had to stand on the running board of (he car in a position that would enable him to receive the signals of the conductor arid rear brakeman, and transmit them to the engineer. On the 22d of March, 1890, while standing on the running lioard of a furniture ear in the proper position to receive and transmit the signals, and in the attitude of doing so, as the train passed over the bridge, he, was struck on the head by one of the overhead timbers of the bridge, and received the injuries for which this suit was brought. Furniture and refrigerator cars, which are in common use on the defendant’s road, are about 2|- feet higher than ordinary box cars. The defendant, in error had crossed the bridge in safety a dozen times or more while standing on the top of The box cars. The principal questions discussed by counsel are: (1) Was it negligence foi* the company to maintain a bridge having overhead tie beams too low to admit of the safe passage of a brakeman standing on the running board of a furniture car, in the discharge of his appropriate duties, when no warning of the dangerous character of the bridge was given by telltales or otherwise? (2) Was the brakeman guilty of contributory negligence in not, ascertaining, by measurement or accurate observation, that he could ne>t pass safely under the overhead beams of the: bridge while standing on ihe running board of a furniture car? Uneler the evidence in this e*ase, these were not questions of law, hut questions of fact for the jury. Under proper instrne:items, the jury found both of these issues against the plaintiff in error, and we: cannot disturb ihe finding. On the evidence, the case: was plainly one for the jury. Railwav Co. v. Ellis, 10 U. S. App. 640, C. C. A. 454, and 54 Fed. 481; Railroad Co. v. Foley, 10 U. S. App. 537, 3 C. C. A. 589, and 53 Fed. 459: Railroad Co. v. Carpenter, 12 U. S. App. 392, 5 C. C. A. 551, and 56 Fed. 451; Dorsey v. Construction Co., 42 Wis. 583. It is claimed that the defendant in error had notice in fact that Hie tie beams across the top of the bridge were too low to admit ihe safe passage of a brakeman standing on the top of a furniture car; but, the defendant in error denies this, and the jury found this issue in his favor. The defendant in error was examined touching the length of time he had been in the service of the company, and, for the purpose of fixing the date he entered the service, he referred to a written memorandum in his possession. After testifying from this memorandum, the court refused to permit the plaintiff in error to inspect the same. This was error, but it was error without prejudice. The length of time the defendant in error had been in the service, if material, was fully established by all the evidence to be that stated by him. The judgment of the circuit court is affirmed,