49 Minn. 240 | Minn. | 1892
This action is prosecuted to recover for alleged negligence causing the death of plaintiff’s intestate. The deceased was employed as a brakeman on a freight train of the defendant. At a certain station on the road the track runs north and south. The train on which the deceased was acting as a brakeman came to this station in the night going south. In the course of the business at that place the engine with eight cars ran on the main track to a point just south of a switch, and stopped. The rear car was to be set back on a side track diverging from the main track at this switch and running north. The deceased turned the switch for this purpose, and then ran down beside the car which was to be switched off, gave a signal with his lantern to the engineer to back up, and then stepped in between the cars to uncouple the rear car, so that it might be sent on the side track by the backward motion of the train. The train was backed immediately upon his signal being given. He did not come out from between the cars, but from some cause he
The hole was a depression in the earth.between the ties, the depth of which is variously estimated at from, one and a .half to three or four inches, and about a foot across at' the top. It was shaped like a saucer, with sloping sides. It was near the place where the deceased went in between the cars, and some eleven feet from the place where his body was found immediately after the injury. There was evidence of the appearance of a footprint in this depression, but this was not discovered until after at least four men had come to the place, and had taken care of and removed the dead body; and there seems to be no more reason for inferring that the footprint was made by the deceased than that it was made by some of the other men just referred to. If there had been no apparent danger in the situation, except such as might have arisen from the existence of the hole, if the accident could not as well be attributed to other causes, the evidence would probably have justified the jury in inferring that this was the cause of it. But there is the insuperable objection to the plaintiff’s theory of the case. There is no proof that the deceased did step in
Enough has been said to show that a finding that the injury was caused by the hole could rest only upon the bare conjecture that such may have been the fact. Such a verdict, if found, could not express the intelligent conviction of the jury from the evidence that this theory was probably true. Hence the court properly directed the jury as to the verdict.
Order affirmed.