44 Minn. 141 | Minn. | 1890
The plaintiff, while engaged in the serviee of the defendant as a brak'eman on one of its freight trains, and while coupling a locomotive to one of the defendant’s stock-cars, had his hand caught between the draught-iron on the ear and that on the locomotive. For the injury thus caused he recovered a verdict in this action. This is an appeal from an' order refusing a new trial. The plaintiff ascribes the injury to three causes: First, a defect in the draught-iron or draw-head of the car; second, a defective condition of the engine; and, third, negligence in the operation of the engine.
The testimony of the plaintiff, if worthy of belief, showed the following state of facts, which, however, was opposed by witnesses on the part of the defendant: The engine was slowly backed up, for the
The evidence, too, went to show negligence in the operation of the
The only other error assigned is in respect to the plaintiff’s seventh requested instruction, to the effect that, if the jury should find by a preponderance of evidence that the defendant was negligent in •either of the particulars to which we have before referred, “the plaintiff would be entitled to recover, if he himself was in the exercise of •ordinary care.” The error alleged is that the instruction did not embody a statement of the condition, essential to .a right of recovery, that the injury be found to have been caused by such negligence. In its general charge the court had with reasonable clearness stated this condition of the right of recovery, and, considering the charge as a whole, there seems to be no good reason to suppose that the jury could have understood that the plaintiff might recover for the defendant's negligence, even though his injury was not caused thereby. The court having already given a proper instruction upon the subject, .if the defendant’s counsel apprehended that the jury might be misled by the neglect to restate this condition in question in giving the requested instruction, the attention of the court should have been called 4o that matter. "
Order affirmed.