1 Reported in 14 N.W.2d 410.
2 Certiorari denied by U.S. Supreme Court October 16, 1944. Clifford Bimberg, employed by defendant as a bridge carpenter, incurred fatal injuries in falling off a wooden trestle or bridge on a branch line of defendant running from Duluth, Minnesota, to Ashland, Wisconsin. This action, brought by the administratrix of his estate under the federal employers liability act, in current fashion referred to as F. E. L. A. (35 Stat. 65, c. 149, as amended, 36 Stat. 291, c. 143,53 Stat. 1404, c. 685; 45 USCA, § 51, et seq.), resulted in a verdict for plaintiff in the sum of $3,240 for pecuniary loss to his sole beneficiary and $2,060 for decedent's conscious pain and suffering.
On October 1, 1941, the day of the accident, one of defendant's bridge and building crews — consisting of a straw boss and four carpenters, including Bimberg — was assigned to the job of lining or straightening a track, running east and west, on a wooden bridge or trestle which crossed a deep ravine near Iron River, Wisconsin. The bridge was about 300 feet long and, at the point from which Bimberg fell, about 40 feet above the level of the ground. Except for a single steel girder constituting the middle span, the bridge was constructed of timber. Wooden stringers, paralleling the steel girder and covered with sheet iron, furnished the immediate support or base for the ties upon which the rails were spiked. Every fourth tie was bolted to the stringers upon which it rested. By removing the spikes holding the rails to the ties so bolted, the deck, consisting of rails and ties, could be moved a fraction of an inch at a time by use of iron lining bars. These bars were about 4 1/2 feet long, weighed 28 pounds, and were shaped like a chisel at one end, with a flat sharp edge about 1 1/2 inches *Page 190 wide. In the work of lining the tracks, the bars were placed under the rails, then anchored upon the metal covering the stringers, and finally heaved in unison by four men, two at each rail, upon signal from one of them.
The bridge carried a single continuous or "running" track. Inside this track were placed two additional steel guardrails designed to prevent trains from leaving the bridge in case of derailment. Near the outer edge on each side of the bridge and running lengthwise of the bridge was a 6 x 8 wooden stringer, called a guardrail or guard timber, laid "flatwise," but so notched as to fit between the ties and prevent their bunching or spreading. Other than these stringers — which at best extended only 5 1/2 to 6 inches above the tops of the ties — there was no guardrail, cable, fence, or structure of any type to prevent workmen and others from falling off the bridge. Nor were the members of the crew equipped with safety belts or other devices to prevent such a contingency.
The ties used on the east end of the bridge were 12 feet long, but on the section of the bridge on which the crew was working at the time of the accident they were only 10 feet long. The ties were nominally 8-inch ties, but actually they were about 7 1/2 inches wide; their centers were spaced 14 to 15 inches apart, leaving an open space of from 6 to 8 inches between them.
The track across the bridge having been reported to be about 1/2 inch out of line, the crew of which Bimberg was a member was dispatched to Iron River on the morning in question to line it up. It was estimated to be about a 3 1/2-hour job. First in order of work was the removal of the spikes from each of the anchored ties for a distance of 80 to 90 feet, or about three rail lengths from the east end of the bridge. The removal of these spikes permitted the deck of the bridge to be wedged either to the north or south as required. Seeford Swanson, in charge at the time, stood at the east end sighting the rails, while the other four men, each equipped with an iron lining bar, took positions in the form of a square east of the center of the bridge, two men at each rail. Bimberg and John Anderson stood between the rails and worked on the south *Page 191 rail, while Floyd Kuru, a comparatively inexperienced bridge worker, and Myron Johnson stood between the north rail and the north edge of the bridge and worked on the north rail. Having inserted their lining bars under the rails, the four men, at an appropriate "Yo-ho" signal given by Anderson, simultaneously heaved on their bars, three or four such operations resulting in moving the deck about 1/4 of an inch toward the south. On the next operation, Bimberg's bar slipped, he lost his footing, and pitched over the south edge of the bridge into the ravine below, thereby sustaining fatal injuries.
The day was clear and the top deck of the bridge dry. There was nothing broken or in disrepair on the bridge other than the misalignment of the track, and no claim is made that the lining bars used were unfit for the purposes intended.
Liability of defendant is sought to be predicated upon (1) its alleged failure to furnish decedent with a safe place to work; (2) its alleged failure to provide safeguards against the danger of workmen falling off the bridge; (3) its alleged failure to instruct fellow employes as to the proper manner of doing their work; and (4) the alleged negligence of such fellow servants. Only the first two charges of negligence need be considered.
Defendant rested its case in the court below and rests it here principally on the broad proposition that, because the proper construction of this trestle bridge is an engineering problem for solution by the railroad and not by the courts, its construction according to an approved plan in general use in rural districts is conclusive in its favor on the issue of negligence. It argues that to compel a railroad to erect guardrails or other safeguards at the edge of bridges or trestles upon branch lines in rural districts, or to build solid floors on such bridges, or to use longer ties than the customary 10- or 12-foot ties, or to provide bridge crews with safety belts is to exact more than the required degree of care; and that, as a matter of law, it has fulfilled all the requirements of due care in building and maintaining its rural bridges according to general practice and custom. It further asserts that "these wooden trestle *Page 192 bridges are designed principally for the operation of trains thereon, and costs of construction must be commensurate with the type and amount of traffic passing over that particular line of railroad."
Anticipating such defense, the plaintiff, in addition to detailed explanation by oral and photographic testimony as to the construction of the bridge here involved, offered expert testimony that according to good engineering practice the open space between ties on bridges should not exceed 4 inches, so as to provide a better floor; that 12-foot ties are safer and more standard than 10-foot ties; and that either a temporary or permanent railing should be provided to protect workmen from falling off a bridge of this character. Plaintiff's experts were of the opinion that accidents of the type here involved could largely, if not wholly, be avoided by erecting guardrails, by spacing the ties closer, and by providing the bridge crews with safety belts.
Notwithstanding persuasive evidence that the bridge here involved was built in conformity with the general usage and custom among railroads, the trial court denied defendant's motion for a directed verdict, and, after a verdict for plaintiff, its motion for judgment notwithstanding the verdict.
This being an action under the F. E. L. A., the correctness of these rulings is a federal question, notwithstanding the sufficiency of the evidence to establish negligence is involved. 2 Roberts, Federal Liabilities of Carriers (2 ed.) § 821. "Only by a uniform federal rule as to the necessary amount of evidence may litigants under the federal act receive similar treatment in all states." Brady v. Southern Ry. Co.320 U.S. 476, 479, 64 S. Ct. 232, 234, 88 L. ed. ___. But, as the authorities we shall cite establish, there is, in fact, no distinction in the tests applied by the federal courts and those uniformly applied by this court in cases arising under our own laws.
Local usage and general custom, either singly or in combination, will not justify or excuse negligence. They are merely foxholes in one of the battlefields of law, providing shelter but not complete protection against charges of negligence. The generality of its plan of construction for trestles or bridges cannot excuse a railroad *Page 193 company from responsibility for negligence in its construction. Such plan of construction, commonly followed and "fortified," as defendant insists, "by many years of successful railroad operation," may be evidence of due care, but it cannot avail to establish as safe in law that which is dangerous in fact. 38 Am. Jur., Negligence, § 33; Minneapolis S. D. Co. v. Metropolitan Bank, 76 Minn. 136, 78 N.W. 980, 44 L.R.A. 504,77 A.S.R. 609; Anderson v. Fielding, 92 Minn. 42,99 N.W. 357, 104 A.S.R. 665; Wiita v. Interstate Iron Co. 103 Minn. 303,115 N.W. 169, 16 L.R.A.(N.S.) 128; Rickerd v. C. St. P. M. O. Ry. Co. (8 Cir.) 141 F. 905, 73 C.C.A. 139; Texas P. Ry. Co. v. Behymer, 189 U.S. 468, 23 S. Ct. 622, 47 L. ed. 905; Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 2 S. Ct. 932,27 L.ed. 605; C. M. St. P. Ry. Co. v. Moore (8 Cir.) 166 F. 663, 92 C.C.A. 357, 23 L.R.A.(N.S.) 962; Midland Valley R. Co. v. Bell (8 Cir.) 242 F. 803, 155 C.C.A. 391; C. G. W. Ry. Co. v. McDonough (8 Cir.) 161 F. 657, 88 C.C.A. 517; 2 Roberts, Federal Liabilities of Carriers (2 ed.) § 809.
The contrary doctrine is traceable in many decisions to the common-law rule that the servant assumes the ordinary risks of his work or those usual to his employment. 35 Am. Jur., Master and Servant, § 124; Note, 68 A.L.R. 1416. Such decisions may now be entirely disregarded, for "every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment" to F. E. L. A. Tiller v. Atlantic Coast Line R. Co.318 U.S. 54, 58, 63 S. Ct. 444, 446, 87 L. ed. 610, 612, 143 A.L.R. 967. Even before the amendment, the United States Supreme Court, in a case to which the present appellant was a party, had declared that "Ordinary care * * * is not merely such care as other railroad companies exercise under like circumstances, for other railroad companies may be careless." Northern Pacific R. Co. v. Mares, 123 U.S. 710, 719, 8 S. Ct. 321, 326,31 L. ed. 296, 301.
We do not say that the duty to erect guardrails, to provide continuous footing, to equip bridge crews with safety belts, or to take safety measures other than those defendant had adopted appears from the record here as a matter of law. The issue of negligence *Page 194 was one of fact, and this, though there may have been no dispute as to general custom and practice, nor as to any of the facts and. circumstances surrounding the accident.
The right of a party to a negligence action to have the jury pass upon the question of liability is not limited to cases where facts are in dispute and the evidence conflicting. When the proof discloses such a state of facts, whether controverted or not, that in essaying to fix responsibility for the injury different minds may reasonably arrive at different conclusions or may reasonably disagree as to the inferences to be drawn from the facts, the issue of negligence vel non is for the jury. 38 Am. Jur., Negligence, § 345; Christianson v. N.W. Compo-Board Co. 83 Minn. 25, 85 N.W. 826, 85 A.S.R. 440; Tennant v. Peoria Pekin Union Ry. Co. 321 U.S. 29,64 S. Ct. 409, 88 L. ed. _____; Tiller v. Atlantic Coast Line R. Co.318 U.S. 54, 63 S. Ct. 444, 87 L. ed. 610, 143 A.L.R. 967, supra; Bailey v. Central Vermont Ry. Inc. 319 U.S. 350,63 S. Ct. 1062, 87 L. ed. 1444, infra.
The legal duty or standard of conduct to be applied to either admitted or disputed facts must be declared by the trial court as a yardstick to be used by the jury in determining whether negligence has been established. Equipped with such yardstick, the role of the jury is to apply it to the conduct in question and determine whether it measures up to standard. Whether the standard of care which should have been exercised was actually exercised is a question of fact to be determined by the jury from their knowledge and experience, except in those rare cases where not only the facts but the permissible inferences therefrom are so certain that reasonable men, in the exercise of a fair and impartial judgment, must agree upon and draw the same conclusion. Ryder v. Kinsey, 62 Minn. 85, 64 N.W. 94,34 L.R.A. 557, 54 A.S.R. 623; Brady v. Southern Ry. Co.320 U.S. 476, 64 S. Ct. 232, 88 L. ed. _____, supra.
Reasonable men might well differ as to whether or not the bridge from which Clifford Bimberg fell was a safe place to work, notwithstanding its conformity with the usual standards of railway construction. More regard for the safety of its employes and less *Page 195 for the item of incidental expense might have suggested to the railroad company either temporary or permanent guardrails, longer ties with closer spacing, or safety belts to prevent just such accidents an here described.
Under the F. E. L. A., as at common law, a railroad company owes its employes the duty to use reasonable care in furnishing them a safe place to work. Bailey v. Central Vermont Ry. Inc.319 U.S. 350, 63 S. Ct. 1062, 87 L. ed. 1444. This duty becomes more imperative as the risk increases. "Reasonable care becomes then a demand of higher supremacy." Patton v. Texas P. Ry. Co. 179 U.S. 658, 664, 21 S. Ct. 275, 278,45 L. ed. 361, 365. The duty is a continuing one, "from which the carrier is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent." Bailey v. Central Vermont Ry. Inc. supra.
The Bailey case is strikingly similar in its facts to the instant case. There a section man was unloading cinders from a hopper car by dumping them through the ties in a bridge floor onto a roadway beneath the bridge. In preparing to open the hopper, he walked out on the stringer of the bridge and applied a wrench to a nut at the end of a shaft running crossways of the car. The hopper opened, the nut spun, and Bailey was thrown by the wrench into the roadway 18 feet below. Disposing of the question whether there was sufficient evidence to go to the jury on the question of negligence in failing to furnish Bailey a safe place to do the work, the court said (319 U.S. 353,63 S. Ct. 1064, 87 L. ed. 1447):
"The nature of the task which Bailey undertook, the hazards which it entailed, the effort which it required, the kind of footing he had, the space in which he could stand, the absence of a guard rail, the height of the bridge above the ground, the fact that the car could have been opened or unloaded near the bridge on level ground — all these were facts and circumstances for the jury to weigh and appraise in determining whether respondent in furnishing Bailey with that particular place in which to perform the task was negligent. The debatable quality of that issue, the fact that fair-minded men might reach different conclusions, emphasize the *Page 196 appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue (Tiller v. Atlantic Coast Line R. Co., supra [318 U.S. 54, 68, 63 S. Ct. 444, 87 L. ed. 610, 143 A.L.R. 967]), as well as issues involving controverted evidence. Jones v. East Tennessee, V. G. R. Co., 128 U.S. 443, 445, 9 S. Ct. 118,32 L. ed. 478; Washington George-town R. Co. v. McDade,135 U.S. 554, 572, 10 S. Ct. 1044, 1049, 34 L. ed. 235. To withdraw such a question from the jury is to usurp its functions.
"The right to trial by jury is 'a basic and fundamental feature of our system of federal jurisprudence.' Jacob v. New York City, 315 U.S. 752, 62 S. Ct. 854, 86 L. ed. 1166. It is part and parcel of the remedy afforded railroad workers under the Employers Liability Act. Reasonable care and cause and effect are as elusive here as in other fields. But the jury has been chosen as the appropriate tribunal to apply those standards to the facts of these personal injuries. That method of determining the liability of the carriers and of placing on them the cost of these industrial accidents may be crude, archaic, and expensive as compared with the more modern systems of workmen's compensation. But however inefficient and backward it may be, it is the system which Congress has provided. To deprive these workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them."
The Bailey case is decisive here so far as the propriety of submitting the issue of negligence is concerned.
During the trial plaintiff had numerous photographs taken of the locus in quo, some of which purported to show a lining bar in position ready for the operation of moving track. The photographs. showed snow on the bridge, which admittedly was not present at the time of the accident. The court admitted the exhibits in evidence for the limited purpose of illustration, and permitted an expert witness to use them in his demonstrations as to the position of the lining bars while in use. We find no reversible error, the. court having properly advised the jury that the photographs were *Page 197 admitted for the purposes of illustration and demonstration only. The admission in evidence of the photographs and their use by the witness for such purposes was within the discretion of the trial court. Lentz v. M. St. P. S. R. Co. 135 Minn. 310,160 N.W. 794.
Defendant also complains of an instruction with regard to the presumption of due care on the part of the decedent given in the following language:
"* * * There is a presumption of law, however, that the decedent, that is, Clifford Bimberg, was in the exercise of due care at the time of the accident. And that presumption of law exists because the man is dead and cannot appear in court to testify what happened at the time of the accident as far as his story is concerned." (Italics supplied.)
In Ryan v. Metropolitan L. Ins. Co. 206 Minn. 562, 571,289 N.W. 557, 561, this court, confessedly running "counter to much that has been said in earlier decisions," adopted the rule that a presumption is not evidence and that plaintiff in an action on a life insurance policy is not entitled to an instruction that "there is in law a presumption against suicide." We there approved a trial court's refusal to instruct on the presumption. In Lang v. C. N.W. Ry. Co. 208 Minn. 487,295 N.W. 57, we held that the giving of an instruction on the presumption of due care on the part of the decedent, though technically incorrect, did not warrant the granting of a new trial where there was no evidence upon which the jury could base a finding of contributory negligence.
Conceding that in the instant case there may have been some evidence to justify the submission of the issue of contributory negligence, yet the giving of the instruction, which was a correct statement of the law as announced in the Ryan case, was not reversible error. It is common practice for trial courts to state propositions of law to a jury, and not uncommon for them to refer to the presumption of due care on the part of a party charged with negligence. Granted that under the rule of the Ryan case a trial court, in its discretion, may decline to refer to the presumption of due care on the part of a decedent because it is a presumption of *Page 198 law rather than one of fact, the giving of such instruction without objection on the part of either party cannot taint the jury's verdict with error.
There remains to be considered only the question of excessiveness of the verdict.
The jury allowed $3,240 for pecuniary loss to the sole beneficiary, Kreeda Bimberg, the decedent's maternal grandmother, who was 69 years of age at the time of her grandson's death and had an expectancy of 9 years. Clifford had been brought up in her home. as one of her family, and, though only 23 years of age at the time he died, he had contributed from $25 to $30 per month to his grandmother during such brief periods as he was employed. It would appear that the jury arrived at the amount of their verdict by multiplying the number of months of Mrs. Bimberg's life expectancy (108) by the maximum monthly contribution of $30 made by the deceased. While the result is a liberal award and probably represents the maximum which could have been allowed under the evidence, we do not feel justified or inclined to interfere with the jury's computation.
The award of $2,060 for conscious pain and suffering of the deceased is likewise liberal; yet it is not so excessive as to indicate passion or prejudice on the part of the jury.
Bimberg lived about 41 hours after falling from the bridge. His injuries involved the greater portion of the left side of his brain, extending down to the base. His attending physician testified that he was unconscious from the time he entered the hospital at noon on October 1, 1941, until he died early in the morning of October 3. There was, however, testimony on the part of an attending nurse that he was conscious at intervals while at the hospital, that he talked some and moaned considerably; being in extreme pain. Other lay witnesses testified to such statements by him as, "Get away, leave me alone," and, "That is all right"; also of moaning and "hollering" and other manifestations of extreme suffering. Plaintiff's expert physician testified hypothetically that "the testimony of the nurse and certain relatives to remarks made, movement of *Page 199 his hands and so forth, would indicate that this. man responded in a conscious manner to a painful stimulus." The jury was justified in concluding that during a substantial part of the 41 hours involved Bimberg endured conscious pain and suffering.
Consciousness and attendant pain and suffering for an appreciable length of time having been established, it was the function of the jury to determine what the award of damages should be. Such pain and suffering admits of no definite calculation in dollars, nor has congress attempted to furnish a standard by which it may be measured. The F. E. L. A. places no ceiling on recoveries under the act, nor does it fix an hourly or per diem rate for conscious pain and suffering, which would have been a distinct legislative innovation. All that is required to justify a recovery under § 9 of the act is that an appreciable length of time shall have elapsed between the injury and death and that the decedent shall have suffered conscious pain. 45 USCA, § 59, notes 11 and 12; 2 Roberts, Federal Liabilities of Carriers (2 ed.) § 895; Fries v. C. R.I. P. Ry. Co. 159 Minn. 328, 198 N.W. 998. And the only limitation upon the size of the award is that it must be within reason. 5 Sutherland, Damages (4 ed.) § 1334.
There are many precedents upholding much larger verdicts than $2,060 for conscious pain and suffering of less than two days' duration. Verdicts of $5,000 or more are not uncommon. See Decennial Dig., Death, No. 99 (2); St. Louis I. M. S. Ry. Co. v. Craft, 115 Ark. 483, 171 S.W. 1185, L.R.A. 1916C, 817, affirmed, 237 U.S. 648, 35 S. Ct. 704, 59 L. ed. 1160; and Fries v. C. R.I. P. Ry. Co. supra, where this court conditionally reduced a verdict of $7,500 to $1,500 upon a record which showed that decedent lived less than 5 hours after his fatal accident and was under opiates during most of that period.
The award of $2,060 in the instant case is not so large as to establish abuse or passionate exercise by the jury of its functions. Gauged by the awards made by other juries in similar cases, the award here cannot be said to be fanciful or beyond reason.
Affirmed. *Page 200