39 Minn. 81 | Minn. | 1888
This was an action for injuries received by plaintiff while a passenger on one of defendant’s trains, caused by the train coming in collision with another train of defendant. The allegations in the complaint in respect to the injuries to plaintiff were such as would justify a recovery (if the evidence would justify it) for injuries that were apparent immediately upon the happening of the collision, and injuries not then apparent, but which were subsequently disclosed. On the trial the evidence indicated that the injuries apparent at once were slight; plaintiff being, as he testified, knocked down, his head knocked against a board, and his hip struck, as he thought, by the tender; but he did not appear to have realized, at the time, that he was hurt so as to cause him inconvenience, for he walked a considerable distance, and then took a long ride in a carriage, at the end of which he found himself very stiff and sore. Though those injuries were slight, they would have justified a recovery for something more than merely nominal damages. Two or three days after the collision, he was taken, and continued for some 13 weeks, seriously ill. He claimed at the trial, and gave evidence tending to prove, that this illness was an effect of the shock and
At the request of the defendant the court gave to the jury three instructions, substantially alike; one of them being in these words: “Before he [plaintiff] can recover, he must satisfy you that his sickness and alleged disabilities resulted from defendant’s negligence, and not from any other source; and if he has failed to show that his injuries /and sickness resulted from the collision, and not from any •other source, he cannot recover.” And another: “If you believe that he contracted a cold, or suffered exposure, which resulted in his sickness after he returned home, and caused the present injuries, if any, of which he now complains, he cannot recover in this action, and your verdict will be for the defendant.” These instructions leave entirely out of account the evidence as to plaintiff’s being knocked down, his head knocked against a board, and his hip being struck by the tender. They are so clear and explicit that the jury must have understood from them that plaintiff could not recover unless he had proved that the sickness, coming upon him two or three days after the collision, was caused by it. As we have stated, he might, on the evidence, be entitled to actual damages, with the matter of his illness left out of account. For the error in these instructions there must be a new trial. This is to be regretted, because it is apparent that they were given ihrough inadvertence, caused by the evidence being so largely devoted to the matter of plaintiff’s illness.
There was another exception to the charge, which we will but briefly notice. The court, in its charge as to the degree of care required of defendant, stated: “They are to use all reasonable care and diligence to prevent a collision.” This was repeated, in effect, several times, the court in each instance using the terms “reasonable care.” Plaintiff claims that this is not equivalént to the “utmost human care and foresight, ” which the law requires of common carriers of passengers. Defendant insists that reasonable care is that degree of care which is required of a party under the circumstances of the particular case, and that, therefore, the rule stated by the court was right. This may
Order reversed.
