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Propper v. Chicago, Rock Island & Pacific Railroad

54 N.W.2d 840, 237 Minn. 386, 35 A.L.R. 2d 459, 1952 Minn. LEXIS 733
CourtSupreme Court of Minnesota
DecidedAugust 1, 1952
DocketNo. 35,706
StatusPublished
Cited by24 cases

This text of 54 N.W.2d 840 (Propper v. Chicago, Rock Island & Pacific Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Propper v. Chicago, Rock Island & Pacific Railroad, 54 N.W.2d 840, 237 Minn. 386, 35 A.L.R. 2d 459, 1952 Minn. LEXIS 733 (Mich. 1952).

Opinion

Magnet, Justice.

Plaintiff, William H. Propper, in a personal injury action recovered a verdict of $45,000. Defendant, Chicago, Rock Island & Pacific Railroad Company, appeals from an order denying its alternative motion for judgment notwithstanding the verdict or a new trial.

Plaintiff, a brakeman-conductor employed by defendant, sustained injuries as the result of a derailment of a freight train engaged in interstate commerce. He brought action under the Federal Employers’ Liability Act. The train consisted of 52 loaded cars, one empty, a caboose, and a locomotive and tender. Exclusive of the engine and tender, the weight of the train was 3,100 tons. The weight of the engine was in excess of 100 tons, the engineer estimating it to be 230,000 pounds. The accident took place on May 9, 1950, about 8 p. m. about three and a half miles north of Kremlin, Oklahoma, a station located on defendant’s Oklahoma division. The train was northbound and plaintiff was its conductor. About 1,600 feet south of the place of the accident, the railroad tracks cross the Wild Horse Creek over bridge No. 3263. The flow of the stream is from southwest to northeast. A short distance north of the place of the accident, probably 150 to 200 feet, the railroad tracks cross another smaller watercourse over bridge No. 3260. Between these two bridges, over part of the distance, the tracks are laid on an embankment known as a “fill” about 12 feet high. Four to four and one-half inches of chat ballast was used. This embankment is 20 to 22 feet wide at the top and 60 feet wide at the base. The track, 4 feet 8% inches wide, is located in the center of the fill. The sloping sides were covered with grass and weeds. The length of the fill between the two bridges is 700 to 850 feet. About 500 feet south of bridge No. 3260 there is a cut, and south of the cut there is another fill near bridge No. 3263.

[388]*388This line of railroad was constructed about 1889. The base material was composed of clay and sand, a type of material commonly used in Oklahoma for road projects. It seems that as originally constructed a third bridge was located at the place where the accident occurred. The original natural course of Wild Horse Creek crossed the right of way at this point. Later, before 1908, a change was made in the roadbed, and the bridge was removed and a fill made. The course of the creek was straightened so as to flow entirely on the east side of the tracks: In general, the territory in the immediate vicinity of the place of the accident was more or less low and flat, somewhat higher on the westerly than on the easterly side. General drainage was northeasterly. Wild Horse Creek was the natural drainage for considerable territory and at times of heavy rainfall it would overflow its banks and the land on both sides of the railroad embankment would become flooded. Just south of the place of the accident and to the west of the embankment is a crescent-shaped slough or bayou which is sometimes dry but which usually contains stagnant water four to eight feet deep. The greatest distance between the bayou and the embankment is about 300 feet. This is mostly low ground. In times of extremely high water, when Wild Horse Creek overflows its banks, the excess water flows through the bayou and passes out through its north end, then down the watercourse under bridge No. 3260 to Wild Horse Creek again. The sketch here reproduced gives a clearer picture of the situation.

The train was proceeding northerly at a speed of 50 miles per hour. The conductor had received no slow order. It was dark at the time. The headlight of the oil-burning steam engine lit up the right of way approximately 800 to 1,000 feet ahead. Everything appeared normal ahead. The train, which was being operated within the prescribed speed limit for that stretch of track, had been running smoothly, with no flat wheels and air brakes all coupled. The engineer described what happened as follows:

“Well, I was looking straight ahead down the track with my head out of the cab window, looking ahead through a clear view
[389]

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Cite This Page — Counsel Stack

Bluebook (online)
54 N.W.2d 840, 237 Minn. 386, 35 A.L.R. 2d 459, 1952 Minn. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/propper-v-chicago-rock-island-pacific-railroad-minn-1952.