139 Minn. 396 | Minn. | 1918
Defendant owns and operates a line of railroad in and through several different states, is a common carrier and engaged in interstate commerce. Plaintiff’s intestate, who was her husband, was in the employ of defendant in its interstate service in the capacity of switchman in the yards of the company at Council Bluffs, in the state of Iowa. While engaged in the discharge of his duties on August 25, 1916, he was run over and killed by a switch engine, around and in connection with which he was engaged in making up interstate trains. Plaintiff was subsequently duly commissioned administratrix of his estate and brought this action to recover the damages caused by his death to his next of kin. She had a verdict in the court below upon which, after a denial of defendant’s motion for judgment or a new trial, judgment was duly rendered, from which defendant appealed.
The assignments of error present the general questions whether the evidence supports the verdict of negligence on the part of defendant, and whether the damages awarded by the jury are excessive.
The evidence, in respect to which there is no substantial dispute in the record, discloses the following facts: Decedent was a member of the night switching crew, and upon the occasion in question entered upon the discharge of his duties at about 8 o’clock in the evening, though switching operations were not commenced for about half an hour latér; he was killed within 15 or 20 minutes after engaging in the particular work. The crew consisted of the engineer and fireman, in charge of the
It is claimed by plaintiff, and herein is found the charge of negligence upon which she relies for recovery, _ that defendant had carelessly and negligently permitted a quantity of coal, in particles ranging from dust to pieces of the size of a walnut, to be and remain upon the particular foot-board, rendering the same dangerous and unsafe for use, in consequence of which decedent slipped when he stepped thereon and was thus caused to lose his balance and fall upon the track.
The allegations of the complaint in this’ respect were put in issue by the answer, but on the evidence presented the trial court and jury sustained plaintiff’s view of the case, in doing which defendant contends that there was manifest error‘for the reasons: (1) That the evidence wholly fails to show how or in what manner the coal came upon the foot-board, or to charge defendant with responsibility therefor; (2) that no witness testified that the presence of the particles of coal made the foot-board dangerous to those required to use it and (3) that whether
We have given the record careful attention with the result that sufficient evidence is found therein to support the verdict as to each of these points. A brief reference thereto may be made.
3. The third contention of defendant presents the only serious question upon this branch of the case, but we conclude that this also was made an issue of fact by the evidence, and that the verdict is sufficiently supported. It was not essential to plaintiff’s case that direct evidence be presented to the effect that decedent slipped upon the particles of coal. The fact could as well be established by circumstantial evidence. Mitton v. Cargill Ele. Co. 124 Minn. 65, 144 N. W. 434; Hurley v. Illinois Cent. R. Co. 133 Minn. 101, 147 N. W. 1005. And though the rule in such cases is that the circumstantial evidence must tend to substantiate the claim that the accident in fact happened dr was brought about by the alleged cause, as well as the fact that it could have happened therefrom (Rogers v. Minneapolis & St. L. Ry. Co. 99 Minn. 34, 108 N. W. 868), we find ample evidence to sustain the claim that the coal upon the foot-board was the immediate and therefore the proximate cause of decedent’s fall upon the track as he attempted to board the engine.' In addition to the account given by the only eye-witness, the foreman of the switching crew, the position of the body after the accident furnishes most persuasive and confirmatory evidence in support of that view of the question. Decedent attempted to step upon the foot-board as the engine approached at the rate of about 4 miles an hour, and was discovered by the foreman, who had safely taken his position on the engine, in the act of falling to the ground, his feet extending to the side of the track opposite that from which he made the attempt, and his head and arm falling upon the rail over which he stepped in doing so. His position indicated-clearly that his feet had slipped from under him, thus causing him to fall in the manner stated. If he had tripped over the rail, as suggested by counsel for defendant, he would necessarily have fallen forward, and his head would have been where his feet were when the accident was over. All this indicates beyond mere conjecture or speculation that the ac
4. The rule of damages in an action of this kind is the same as that followed by the Federal courts in like cases, and permits a recovery of compensatory damages only, based upon the pecuniary loss of the next of kin. Nash v. Minneapolis & St. L. R. Co. 131 Minn. 166, 154 N. W. 957. In that case the next of kin consisted of the widow and 2 children, 3 and 5 years of age, respectively. In the case at bar the widow and 3 children remain as next of kin, the ages of the children being 4, 6 and 10 years. The earning capacity of decedent in that case was not substantially different from the earning capacity of decedent in' this case. We there held that $18,000 was an excessive award of damages, and the verdict was ordered reduced to $12,000. The situation presented in each case is similar, and there are. no substantial differentiating facts. The award in this case was $20,000. Within the rule applied in that case the amount is excessive and there must b^ a new trial or a reduction of the verdict.
It is therefore ordered that unless plaintiff, within 10 days after the cause is remanded -to the court below, shall file a consent to a reduction of the verdict to the sum of $16,000, a new trial will be and is hereby granted. If the consent be'so filed the judgment appealed from, as thereby modified, will be and is affirmed.
It is so ordered.