101 Minn. 113 | Minn. | 1907
Action for personal injuries alleged to have been occasioned by the negligence of defendant, in which plaintiff had a verdict for $2,000. Upon defendant’s motion the court below ordered judgment for defendant notwithstanding the verdict, and plaintiff appealed.
The facts are as follows: Plaintiff was in the employ of defendant
The precise ground of negligence relied upon is that defendant had established a rule or custom for the operation of switch engines in the yards, by which the persons in charge thereof gave notice or warning of their approach to employees at work upon the tracks by ringing the bell or sounding the whistle, of which plaintiff was informed and upon which he relied for his protection; that the custom was negligently violated; that the engine which struck plaintiff was run through the yards at a rapid rate of speed, and no warning of its approach by ringing the bell or sounding the whistle was given. It is conceded that the evidence was sufficient to take the case to the jury upon the question of defendant’s .negligence, both as respects the custom of ringing-the bell as a warning to yard employees, and the failure to observe it and no questions are presented on that branch of the case.
It is contended, however, that the evidence is conclusive of plaintiff’s-, contributory negligence, and therefore the court below properly ordered judgment for defendant. This position is based upon the theory that plaintiff failed to exercise proper care for his own protection in looking and listening for an approaching engine before going upon the track at the time of the accident. We think the evidence made this a question of fact for the jury.
The case is substantially like Joyce v. Great Northern Ry. Co., 100 Minn. 225, 110 N. W. 975, where the alleged contributory negligence of a track repairer in the Union Depot yards, who was injured under circumstances similar to those in the case at bar, was held a question for the jury.
In the case at bar the accident occurred at the close of the day ancP. when the men were busy closing up their work, removing tools from,: the track, and covering the trench. Just preceding the accident plaintiff had crossed the main track and the depot platform with some tools,. and returned to assist his fellow workmen in covering the trench. If,, as contended by defendant, plaintiff, heedless of his surroundings, stepped upon the track almost in front of the approaching engine, a cl.esL; case of contributory negligence would be presented. But the evidence does not warrant that conclusion as a matter of law. There is evidence in the record that plaintiff was upon the track, engaged in his work, -at the time he was struck, and was then assisting in raising a plank with which to cover the trench. The claim that this evidence should be rejected, because the witness who gave it was, under the circumstances disclosed by other evidence, unworthy of belief, cannot be-adopted. The evidence was before the jury, and it was for them to accept or reject. Hartman v. Minneapolis, St. P. & S. S. M. Ry. Co., 100 Minn. 43, 110 N. W. 102. The case of Sours v. Great Northern Ry. Co., 84 Minn. 230, 87 N. W. 766, is materially different in its facts, and the rule there laid down does not apply. The facts here before us, bring the case within Joyce v. Great Northern Ry. Co., supra.
Our conclusion, therefore, is that the question of plaintiff’s contributory negligence was for the jury, and filial judgment for defendant
Order appealed from reversed.