230 N.W. 793 | Minn. | 1930
Lead Opinion
2. Plaintiff was not a trespasser. Under the circumstances shown he was a licensee at least and probably an invitee. Minneapolis Mill Co. v. Wheeler,
Where the person injured is an invitee, whether the invitation is express or implied, the owner in charge of property or instrumentalities owes the duty of exercising ordinary care. 45 C.J. 823-825.
3. When the train arrived at Winnebago it stopped for the usual switching operations and to make usual train movements to place cars in position to load and unload freight. Plaintiff stepped out of the caboose and walked around outside. He then, either by reentering and passing through the caboose or passing around it, went upon the front platform thereof. While there the train slowly moved ahead about two car lengths for the purpose of placing a car in position to unload freight. Plaintiff claims that while this movement was going on he turned to re-enter the caboose, and the train then slacked up for stopping, with a violent and unusual jar, which caused him to be thrown backward over the railing of the platform to the ground and caused his injury. He claims that the fireman, who was operating the engine, was negligent in so applying the brakes as to cause this jar. He is the only one who testified to any such jar. The trainmen and the only passenger in the caboose deny that there was any violent or unusual jar.
The evidence to show failure of the defendant to exercise ordinary care is weak and unsatisfactory. A verdict based thereon would be difficult to sustain. But judgment notwithstanding the verdict should not be granted by this court unless the evidence is practically conclusive against the verdict and there is no probability that other evidence can be presented on a new trial. Erwin v. Shell,
The case of G. M. N. R. Co. v. Wells,
4. Plaintiff, over objections, was permitted to show that the train conductor, after the accident and on his return to Vernon Center, went into the ticket office there, purchased and paid for a ticket to cover plaintiff's trip, and reported the same to the company as a ticket taken up by him as conductor on the trip. Plaintiff had no part in or knowledge of this transaction. The reception of this evidence was error.
5. The question of plaintiff's contributory negligence was a close question of fact. We do not further discuss it.
Other questions presented are not likely to arise on a new trial.
For the reasons stated it was error to deny the motion for a new trial.
Order denying a new trial reversed.
Dissenting Opinion
I dissent to holding as a matter of law on this record that plaintiff was not a passenger. He bought and paid for a ticket and surrendered it to the conductor. Whether he knew that the conductor thereafter delivered the ticket to the depot agent and got the price back for plaintiff's use so that his status as a passenger ended when he accepted some money from the conductor appears to me to be a jury question.
Addendum
Reargument was granted on the one issue of the sufficiency of the *310 evidence to sustain any finding of negligence on the part of the defendant.
The record has been re-examined and considered.
As indicated in the original opinion, we do hold that the evidence in the present record is insufficient to sustain a finding that defendant was guilty of any negligence.
With that statement, the former opinion is adhered to.
