94 Minn. 146 | Minn. | 1905
Action for personal injuries sustained by an employee of defendant corporation through its alleged negligence in failing to furnish suitable instrumentalities for the work. At the close of the testimony there was a request for a directed verdict by defendant upon the ground that the evidence did not establish the negligence of the master, as well as upon the further ground that the evidence tended to show plaintiff contributed to his own injury and assumed the risks of the service. This motion was denied. When the cause was submitted to the jury by the court, a verdict was returned for plaintiff. The defendant thereafter served upon plaintiff’s counsel a “case” purporting to contain the evidence, to which amendments were offered by plaintiff’s counsel. Thereupon the trial court certified that such “case,” containing one hundred fifty one pages of typewritten matter, had been examined, and found conformable to the truth, and to contain substantially all the material evidence offered or introduced at the trial of the cause, as well as the charge of the court and defendant’s requests, whereupon defendant’s counsel filed affidavits tending to show that testimony was received that was not included in the settled “case,” and then moved for judgment in favor of defendant notwithstanding the verdict, or for a new trial in the alternative, which was denied. From this order defendant appeals.
It appears from the evidence that plaintiff had been for more than three years prior to his alleged injury an employee of defendant ; that it was his duty to clean out the manure box or offal vat in the
An examination of the evidence in the settled “case” reasonably tends to support the claims of plaintiff, and we are also satisfied from the record that whether plaintiff exercised ordinary care, and whether upon his knowledge of the defects referred to, he assumed the risks of his employment, were also questions of fact, which were for the jury, and hence determined- by the verdict.
The question which counsel regards as most serious and urges on this review with much force and earnestness affects the reliable accuracy of the settled “case,” and arises from a remark made by the trial judge at the close of the evidence upon the request of defendant for a directed verdict, when the court said, after the argument for the directed verdict:
From my want of knowledge as to what the plaintiff testified to because I am almost entirely without any knowledge upon that point, I shall let you go to the jury and discuss these questions.
It is now claimed that this statement of the court indicates clearly that the trial judge did not act advisedly in passing upon the alternative motion, and that defendant has been denied its constitutional right to a fair and impartial trial.
We cannot adopt the view that the “case” proposed by defendant as settled and certified by the court is not reliable by reason of the remark of the trial judge referred to. Without stopping to determine by what means the trial court reached the conclusion that the “case”
While there may be a method by which a complaining party dissatisfied with a return of the evidence can have the same corrected, it must be done by the presiding magistrate; hence the course proposed on this review is not to be sanctioned, or the plaintiff deprived of his rights in the verdict by a showing upon affidavits that the trial judge did not hear portions of the evidence. This is a question of procedure, rather than of plaintiff’s rights under the organic law, and neither the rules of orderly practice nor the presumption due to the verdict or to the return which the defendant himself sanctioned will permit of such an innovation.
An examination of the entire charge shows that upon every issue involved the trial court properly instructed the jury both upon the question of the assumption of the risk by the plaintiff and his alleged contributory negligence. The requests asked by the defendant were properly refused, since all correct rules applicable to the issues therein were embraced in the general charge.
Order affirmed.