I dissent. It is undisputed that, in moving to the log track, it was necessary for the lococomotive to backup, pushing the 7 cars east past the depot and water tank; that the time of taking water was always for the engineer to determine; that it was the custom to go on to the log track with a full tank of water; that this custom was known to all members of the crew; that there was a street crossing about 3 carlengths east from the water tank; that there was a slack of from 6 to 12 inches in each coupling between cars; that the air was not connected on the string; that, when the locomotive started with the 7 cars toward the log track, plaintiff, unknown to either the engineer or the fireman, swung onto the south side of the front end of the most easterly car and stood between the ends of the logs and the front edge of the floor of the car, entirely out of view of the men on the locomotive; that the engineer had not seen him that morning and did not know that he was on the job; that Richards, the head brakeman, was also on the front end of the front car and, as they passed the water tank, he climbed down and hung on the side of the car with his feet in the stirrup and had hold of a stake with his hand, in plain view of the engineer and of the plaintiff; that the locomotive was moving about 5 or 6 miles *Page 108 per hour at that time but, as it neared the tank, the engineer shut off steam and gave a slight reduction of air, about 5 pounds; that when within a half carlength of the tank he again gave a slight reduction of air, for the purpose of stopping to take water; that he then received from Richards the emergency signal and immediately reversed his engine and applied the brakes. Plaintiff had fallen, his leg was injured, and it became necessary to amputate.
Immediately after the accident the engineer went and measured the distance between the end of the logs and the front edge of the car floor. He testified it was just 22 inches. Other members of the crew testified that, in their opinion, the distance was from 18 to 24 inches. Plaintiff testified that he thought it was from 4 to 6 feet. The plaintiff also testified that, in switching work, they were constantly expecting jerks; that they came without your knowing when or why until afterwards; that no engineer stops twice alike; that when steam is shut off and the brakes applied, with seven cars, there is a jerk. The conductor's testimony was to the same effect. He testified that, in switching, when steam is shut off, the slack runs out and there will be a jerk at the farther end of the string — sometimes heavy, sometimes medium, sometimes slight — probably in every movement a different jerk; that, when a man goes railroading, about the first thing he does is to learn to protect himself against the slack because, in all movements, there is a certain amount of slack.
Richards, the head brakeman, testified that he was hanging on the north side of the car in plain sight of both the engineer and the plaintiff; that he saw the plaintiff when he fell; that he immediately gave the emergency signal to the engineer; that just before the plaintiff fell there was a jerk of the cars, caused by the application of air; that the jerk did not disturb him; that, when moving down to the log track, they sometimes cut the cars off and sometimes not, for the purpose of taking water, all depending upon how the traffic was on the street — if the crossing was clear, they would take a chance and not cut off.
There is no room for doubt but that the second application of air caused the jerk that brought about plaintiff's fall. The decisive *Page 109 question is: Was the engineer guilty of the slightest degree of negligence in handling his engine as shown by the testimony? If so, where does such testimony appear in the record?
It is said that the claim is, "that the engineer negligently applied the brakes so as to unusually jerk the train at the time and place where it was not necessary and not to be expected."
But the plaintiff testified that, in switching work, they are constantly expecting jerks; that they come without you knowing when or why until afterwards.
In the Perkins case, 152 Minn. 226, 188 N.W. 564, cited in the opinion, it is stated: [at page 231]
"It has not yet been held that a sudden and momentary checking of the motion of a freight train is of itself proof of negligence in its operation. In each case where a recovery was allowed there was proof of some specific act of the engineer which was of a negligent character. * * * If the engineer had reversed the engine, this might have happened. Therefore, no other cause for the momentary stop being shown, plaintiff's theory is that it did happen. It seems to us that this is purely conjectural, and, of course, a verdict cannot stand if based upon mere possibility or conjecture. For this reason we hold that the evidence fell short of making a prima facie case of negligence in the operation of the engine, and hence there must be a new trial. We do not hold that under no possible combination of circumstances can negligence be inferred from the naked fact that the speed of a freight train was checked suddenly and violently under unusual and extraordinary circumstances."
Apparently the decision herein finds lodgment in the Fry case,141 Minn. 32, 169 N.W. 147. That case is cited in both the syllabus and in the opinion. A full consideration of the facts in that case may help to elucidate the excerpt taken therefrom.
Fry was a brakeman in charge of the train and its movements. It was the duty of the engineer to keep him in view and to obey his signals. Fry caused a string of 3 cars, attached to the locomotive, to be coupled onto a flat car. He then gave the engineer a slow back-up signal. As the flat car passed him, he boarded same *Page 110 for the purpose of releasing a hand-brake on the opposite end. Under the evidence, the jury was authorized to find that the engineer, with full knowledge of Fry's position, without any signal from him and without any necessity therefor, suddenly applied the air, violently jerking the cars, then released, then applied it again, jerking the cars more violently, then again released. As Fry went off the car, the engineer continued the backward movement and ran the cars over him. An eye witness, standing near, testified that the second jerk was so violent that he saw dust fly from the flat car.
No one will question that such conduct on the part of the engineer (if the jury believed him guilty of it), was negligence to a degree approximating wilfulness. After reciting the foregoing fact, the opinion states: [at page 35]
"If there were unusual jerks to the car and they were occasioned by the application of the air, as claimed by theplaintiff, then the defendant was chargeable with negligence. * * * We have considered the testimony in connection with thesurrounding circumstances and are of the opinion that the same made an issue for the jury."
The language quoted was used solely in connection with the particular facts in that case and manifestly was not intended as a statement of any rule to be used as a precedent in other cases. I discover no similarity in the facts here and, in my judgment, the language used in that case is without the slightest application here.
In the Beaton case, 123 Minn. 178, 143 N.W. 324, it was said [at page 179] that,
"The bringing of cars together with unusual force is an element to be considered in determining negligence of a railroad company, [but is not] in itself evidence of negligence under any and all circumstances. It is a matter of common knowledge that in switching operations cars are brought together with varying degrees of force. There is here no testimony as to the circumstances under which this impact occurred, nor as to what occasioned the unusual blow. There is no testimony that any of the men engaged in the switching knew *Page 111 of the presence of plaintiff in this car. Under all of the testimony, we are of the opinion that there was no sufficient evidence of negligence to sustain a verdict for plaintiff."
There must be some proof of negligence aside from the mere jerk. Sudden and severe jerks and jolts, of varying degrees of violence, are frequent in such work, often fraught with great danger, yet standing alone are not sufficient to raise a presumption of negligence on the part of the engineer, nor is the injury, coupled with the mere jerk, sufficient. For the purpose of this appeal, plaintiff's injury must be deemed to have occurred in the manner described by him. The decisive question then is: Was the evidence sufficient to sustain a finding of negligence on the part of the engineer?
What were the circumstances that constituted negligence? The track was in proper condition, the engine and brakes were in good working order. There was no unusual condition, such as ice on the floor of the car. The only circumstance, attendant upon the jerking of the car, is to be found, if at all in the slowing down of the locomotive for the purpose of taking water. The locomotive had not been moving faster than from 5 to 6 miles per hour. In slowing down, the engineer shut off steam and applied the air slightly. The locomotive lessened its speed. When within a half carlength of the right spot for taking water, he applied the air again which, in such work, necessarily checked the speed of the locomotive, allowed the slack to run out, and caused the jerk complained of. Can it be said that, in so handling his engine, the engineer was guilty of negligence?
In my opinion, what occurred would not have been considered an accident at all had it not been for the injury to plaintiff. True, even when applied to master and servant, the manner and circumstances of an accident may be such as to constitute circumstantial evidence, tending to show negligence. Some accidents may be of such character as to render the doctrine of res ipsa applicable, others may not. It is not the fact of injury which gives rise to the application of the doctrine, but it is the accidental event from which the injury resulted. Thomas v. Boston Elevated Ry. Co. 193 Mass. 438, 79 N.E. 749; Wyatt v. Pacific Elec. Ry. Co. 156 Cal. 170, 103 P. 892 *Page 112 ; Levin v. Philadelphia R. Co. 228 Pa. 266, 77 A. 456; Eisentrager v. G.N. Ry. Co. 178 Iowa 713, 160 N.W. 311, L.R.A. 1917B, 1245; Hunt v. C.B. Q.R. Co. 181 Iowa 845, 165 N.W. 105, L.R.A. 1918B, 369.