Page:North Dakota Reports (vol. 3).pdf/131

 George A. Bennett vs. Northern Pacific Railroad Company.

Opinion filed Dec. 17th, 1892.

Injury to Employee—Question of Negligence for Jury.

Plaintiff, a switchman, in the employ of defendant, was directed by the foreman of the switching crew to assist him in coupling an engine to a flat car. According to some of the evidence the drawhead of the car sank flush with the end of the car when the engine struck the car, and plaintiff was caught between the car and engine, and injured. The evidence showed that the play of a drawbar was from 1 to 4 inches, and that this drawbar was 10 or 12 inches long. Held, sufficient evidence of defendant’s negligence to require the submission of that question to a jury.

Contributory Negligence—What is Not.

The track on which the coupling was made was a curved one, and plaintiff was standing on the footboard of the engine, on the inside of the curve, at the time he was injured. There was no evidence as to the degree of the curve. Held, that he was not negligent, as a matter of law, in remaining there to help in making the coupling.

Evidence Applied.

Nor was he guilty of contributory negligence, as a matter of law, in standing in that place, notwithstanding the unusual shortness of the drawbar of the engine and of the drawbar of the car, the former projecting 6 inches beyond a rim on the rear of the engine, and the latter being, according to some of the evidence, 12 inches long, the evidence showing that the usual play to a drawbar is from 1 to 4 inches; there being no play to the drawbar on the engine, and it being undisputed that the engine approached the car slowly to make the coupling, so that the amount of slack taken up would be but little, if everything was in proper order.

Standing on Footboard of Engine.

Neither was it contributory negligence, as a matter of law, for him to remain on the footboard, instead of going ahead, and setting the pin, and then stepping outside the track before the engine and car came together.

Appeal from District Court, Stutsman County; Rose, J.

Action for personal injuries by Geo. A. Bennett against the Northern Pacific Railroad Company. Defendant had judgment, and plaintiff appeals.

Reversed.

S. L. Glaspell, for appellant.

Ball & Watson, for respondent.