85 Minn. 391 | Minn. | 1902
This action was brought to recover damages for personal injuries alleged to have been caused by plaintiff’s horse taking fright at one of defendant’s locomotives at a street crossing in the city of East Grand Forks. Plaintiff had a verdict in the court below, and defendants appealed from an order denying their alternative motion for judgment notwithstanding the verdict or, for a new trial.
The court below submitted three specific questions to the jury to be answered in addition to their general verdict, as follows:
“1. Was defendant Dampier guilty of any negligence which was wholly or partly the proximate cause of plaintiff’s injury?
2. Was the engineer, John Downey, guilty of any negligence' which was wholly or partly the proximate cause of plaintiff’s injury?
3. Was the fireman, James Mulally, guilty of any negligence ■ which was wholly or partly the cause of plaintiff’s injury?”
We are of the opinion that the verdict of the jury on these issues necessitates, in the light of the issues made by the pleadings, a reversal, and without a consideration of the merits of the case as disclosed by the evidence. The negligence charged against defendant in the complaint is as follows:
' “That in pursuance to said signaling this plaintiff drove upon the said crossing; that said engine was then in a dangerous proximity to the driveway where the plaintiff was to drive in making said crossing, all of which was well known to said conductor, but was unknown to the plaintiff, by reason of said engine being concealed from view by the said row of box cars; that as soon as the plaintiff’s horse came by the side of the said engine, which was very near to the driveway, the defendant’s servants, engineers, and employees carelessly and negligently permitted and allowed exhaust steam to escape into the smokestack of the said engine, and otherwise allowed the same to make a loud noise, which naturally tended to frighten the horse, which was of ordinary gentleness ; that the defendant’s action in signaling the plaintiff to drive across the said crossing while the said engine was in such close proximity to the driveway, and then carelessly, wantonly, and negligently allowing the said engine to exhaust its steam through the smokestack, and otherwise emit loud noises, caused the plaintiff’s horse to be frightened, and caused him to run away and capsize the buggy in which the plaintiff was seated; that thereby the plaintiff was thrown with great force,” etc.
It will be observed that plaintiff predicates his right of recov-. ery, not upon the fact that the horse was frightened at the engine because it was in the street or in close proximity to the driveway, but upon the alleged fact that the conductor signaled him to cross, and that, while he was so crossing, the employees, engineers and servants, carelessly and negligently permitted steam to escape from the engine, and the making of other loud noises, by reason of which noise the horse became frightened and ran away.
It is well settled by the authorities that a railway company is not responsible or chargeable with negligence for accidents caused
The evidence tends to show that it was the usual and ordinary occurrence for the blower or air pump of the engine to be at work under similar conditions; and that there was no negligence on the part of the servants of defendant in control of the engine in permitting it, the special verdict affirms. The jury having thus exonerated the engineer and fireman, who were the persons in charge and control of the engine, there is nothing upon which plaintiff can base a recovery, within the allegations of his complaint. Had the allegations been broader, and had defendant been charged with negligence by reason of the close proximity of the engine to the driveway, in consequence of which plaintiff’s horse was frightened, the evidence shown in the record would have been sufficient to take the case to the jury. But the complaint is not broad enough to permit a recovery on any such theory, and the trial court expressly refused to submit that question to the jury.
This refusal on the part of the trial court clearly negatives the claim made by plaintiff’s counsel in this court that the theory of the trial was such as to authorize a recovery upon that ground. The ruling on this subject was clearly right. The requests to instruct the jury upon that theory were not within the allegations of the complaint, and there was no application for an amendment. The gist of the negligence charged in the complaint is that defendant was negligent in permitting the engine to make the noise which frightened his horse, and plaintiff must stand or fall, as the
We have fully considered the contention, of counsel for appellants that defendants are entitled to final judgment in their favor, and conclude that the case does not come within the rule of Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958.
The order denying the motion for judgment notwithstanding the verdict is affirmed, but the order denying a new trial is reversed.