243 Minn. 566 | Minn. | 1955
Plaintiff seeks to review and vacate a nonappealable order by mandamus.
This matter arises pursuant to an order directing the trial court to show cause why a peremptory writ of mandamus should not issue commanding it to vacate an order granting a new trial, or in the alternative, if mandamus for that purpose is denied, requiring the trial court to vacate said order and to make a new order based exclusively on evidence presented to the jury.
Two trials have resulted in verdicts for the plaintiff and the granting of new trials. After the first trial, defendant appealed from an order denying its alternative motion for judgment or a new trial and this court reversed such order and granted a new trial.
Plaintiff brought the action under the Federal Employers’ Liability Act against the defendant to recover damages for personal injuries. Plaintiff claims that he was injured on June 20,1948, while working as a locomotive fireman for the defendant at Oelwein, Iowa. He asserts that the sand pipe on the Diesel engine was bent when the engine moved over a broken rail in the course of switching operations. He alleges that the engineer directed him to pry the sand pipe away from the wheel of the engine with a crowbar. In prying the sand pipe away from the wheel, plaintiff had most of his body underneath the engine. Without giving any warning, the engineer is said to have released the air brakes. The noise of escaping air and the accompanying blowing of sand and dirt in his face frightened plaintiff because he interpreted it to mean that the engine was about to move. Plaintiff asserts that, in quickly trying to remove his body from underneath the engine, he struck his head against the engine’s frame. He claims that striking his head on the frame caused condi
After the trial court had granted defendant’s motion for a new trial on the ground that the verdict was not justified by the evidence, plaintiff moved to vacate the order granting a new trial. Plaintiff’s motion was denied. In the memorandum attached to the order denying a vacation of the order granting a new trial, the trial judge stated:
“The Court in its memorandum to the order granting a new trial, among other things, stated ‘on the motion the Court has had the benefit of briefs submitted by counsel, additional photographs supplied by counsel for the plaintiff, and the opportunity of inspection of several Diesel engines of the defendant, and of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, and consultation with employees of both companies relative to the mechanical operation of Diesel engines. Of course, none of this is evidence in the case, but was simply for the purpose of better enabling the Court to understand the testimony in the case/
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“And, of course, the Court reiterates that it did not, ex parte or otherwise, obtain evidence outside of the record, that it used on the motion for a new trial.”
The memorandum clearly reveals that the trial court, after the jury had brought in a verdict for the plaintiff, personally visited the railroad yard of the defendant and also the railroad yard of another railway company and inspected several Diesel locomotives and consulted with the employees of the defendant, and with employees of the other railway company, to obtain information on how the Diesel engines operated. It is clear that the trial court conducted such inspections and interviews without notifying or permitting the parties to accompany him.
Despite the assurance of the trial judge in his memorandum that he did not use as evidence any of the information obtained on his visit to the railroad yards and despite the fact that the memoran
We need not explore all reasons why plaintiff’s resort to mandamus must fail. It is enough to point out that mandamus will be denied where it is obvious that it will prove to be futile, unavailing, and ineffective.
There is another reason why this court cannot recognize mandamus as a remedy to review a trial court’s discretion in granting a new trial. We have asserted that reason in denying certiorari as a remedy for that purpose. Salters v. Uhlir, 196 Minn. 541, 265 N. W. 333. A review by mandamus of a trial court’s order granting a new trial cannot be resorted to any more than certiorari can be used to review such an order. Were we to hold otherwise, a party could accomplish indirectly by mandamus or certiorari that which he cannot accomplish directly by an appeal.
Although we must deny plaintiff the relief he seeks through mandamus, that denial is not to be considered as an approval of the trial court’s action in inspecting Diesel engines in the railroad yards and in consulting with unsworn railroad employees about the opera
The order to show cause why a peremptory writ of mandamus should not issue is discharged.
Order to show cause discharged.
Briggs v. Chicago G. W. Ry. Co. 238 Minn. 472, 57 N. W. (2d) 572.
State ex rel. Smith v. Haveland, 223 Minn. 89, 25 N. W. (2d) 474, 174 A. L. R. 544; State ex rel. Lum v. Archibald, 43 Minn. 328, 333, 45 N. W. 606, 608.
See, Asplund v. Brown, 203 Minn. 571, 282 N. W. 473.
M. S. A. 605.09 (4); Thompson v. Mann, 202 Minn. 318, 278 N. W. 153.
53 Am. Jur., Trial, § 1128; 64 C. J., Trial, § 1005; see, Claesgens v. Animal Rescue League, Inc. 173 Minn. 61, 216 N. W. 535.
See, 4 Wigmore, Evidence (3 ed.) § 1169.
Claesgens v. Animal Rescue League, Inc. 173 Minn. 61, 216 N. W. 535; see, Ball v. Twin City Motor Bus Co. 225 Minn. 274, 30 N. W. (2d) 523, 9 A. L. R. (2d) 933.
See, 4 Wigmore, Evidence (3 ed.) § 1169; 64 C. J., Trial, § 1007.
See, 4 Wigmore, Evidence (3 ed.) § 1166; Pierce v. Brennan, 83 Minn. 422, 86 N. W. 417.
See, Greenberg v. City of Waterbury, 117 Conn. 67, 167 A. 83; Empire Pipeline Co. v. Dowdy, 177 Okl. 386, 60 P. (2d) 757.
See, 4 Wigmore, Evidence (3 ed.) § 1167: It is to be noted that sworn witnesses may deliver or repeat their testimony and point out the objects to which they refer. Id. § 1167. As to official “showers,” see 4 Wigmore, Evidence (3 ed.) § 1167; 6 Wigmore, Evidence (3 ed.) § 1802.
Rush v. St. Paul City Ry. Co. 70 Minn. 5, 72 N. W. 733; 53 Am. Jur., Trial, § 897; 64 C. J., Trial, § 800.