48 Minn. 391 | Minn. | 1892
The plaintiff, while acting as a conductor on the defendant’s electric street railway, was injured by reason of his foot being caught between the irons by which the electric motor car is coupled to the coach in its rear. This occurred at the end of the road, where the cars are uncoupled and switched from one track to another. Negligence on the part of the man operating the motor car is assigned, in that he backed the car when he should have gone forward. But it was further alleged that the defendant was chargeable with negligence in providing cars with a defective motive power. The electric motor in use on this car was what is called the “Sprague Motor,” and the only ground of complaint in this particular, as disclosed by the case, is that a device which is designated as a “resistance coil" was not employed as a part of the electrical apparatus on the car. This is a contrivance used in connection with the Sprague motor, the purpose and effect of which is to resist and to moderate the current of electricity when it is first applied, so that the car, when set in motion, starts more gradually and with a less sudden impulse than it does when that resisting medium is not employed. The suddenness of the backward motion of the car on the occasion in question was shown as a fact to which, in part, at least, the accident may be attributed. By its instructions the court submitted it to the jury to decide upon the evidence whether the defendant was responsible by reason of the fact that the car was not provided with a resistance coil. We are of the opinion that the defendant’s exception to this was well taken, and that the evidence did not justify a recovery upon that ground. A sufficient reason for this conclusion is that there was no proof that, at the time of the accident, the resistance coil had even been invented or discovered, and certainly none that it had come to be so known, approved, and recognized as a useful device in connection with such motors that the defendant is to be charged with negligence in not having adopted it. The evidencé as
With reference to another trial, we will refer to another matter. Both parties rely upon and invoke the benefits of Laws 1887, ch. 13, as a law applicable to the case. We therefore assume that it is applicable. The defendant relies upon the point that the effect of that act is to cast the burden upon the plaintiff to show that he was not guilty of contributory negligence, and that the court erred in ruling to the contrary. It was not within the purpose of this act to change the rule, always recognized in this state, that the burden of proving contributory negligence on the part of a plaintiff prosecuting another for negligence rests on the defendant. The object of the statute was to change, as applied to railroad operatives, the rule of the common law which exempted a common employer of several servants from liability to one for the negligence of his fellow servants. The declared liability for injuries sustained by the negligence of a fellow servant is qualified by the words, “without contributory negligence on his part,” but this was not intended to change the rule of evidence or burden of proof. Obviously this was inserted from motives of caution, that it might not be supposed that the declared liability of the master was intended to be absolute, and without regard to any negligence of the complainant contributing to the result. The language recited simply preserves, as an express limitation of the
Order reversed.
(Opinion published 51 N. W. Rep. 125.)
