125 Minn. 7 | Minn. | 1914
Action for personal injuries, in which plaintiff had a verdict and defendant appealed from an order denying its alternative motion for judgment or a new trial.
The only questions presented are: (1) Whether the evidence justified the jury in finding negligence on the part of defendant; (2) whether plaintiff assumed the risks incident to the use of the alleged defective instrumentality; and (3) whether the damages are excessive.
The facts are as follows: Defendant operates a line of interstate railroad between points in this and in the state of Wisconsin, and the action is predicated upon the Federal Employer’s Liability Act.
1. Plaintiff offered evidence on the trial, tending to show that there was in actual use, by defendant and other railroad companies, a trap-door connected with a spring which would raise and open the door when released, and it was claimed that defendant was negligent in failing to so supply the trap-door of this car. The court submitted the question to the jury, in connection with the further contention, in support of which evidence was offered on the trial, that defendant was negligent in permitting the trap-door in question to become out of repair. It may be doubted whether the evidence is sufficient to justify a finding of negligence in the failure of defendant to equip this car with the automatic trap-door spring, but it is unnecessary to decide the question. The assignments of error are general and challenge the sufficiency of the evidence to support a verdict on either theory of negligence, and as there was no objection to the submission of the particular issue, and no exception to
2. The evidence tendered by plaintiff made the questions whether the trap-door was out of repair to such an extent that the catch or latch by which it was held in an upright position would not uniformly operate, resulting in the fall of the door when raised by one from the outside, and whether the defect, if it existed at all, had existed for such time as to charge defendant with notice thereof, issues of fact for the jury, and the evidence is not so clearly against their finding as to justify interference by this court.
3. The serious question in the case is whether the manner in which plaintiff attempted to board the train was sanctioned and approved by custom in the operation of such trains, and therefore proper railroad service, or whether it was so unusual and so inherently dangerous that it should be declared as a matter of law that he assumed the risks of injury, incident to that method of entering the train. It may be conceded for the purposes of the case that, had plaintiff tripped upon the railroad ties, or stumbled over some object in his path as he walked rapidly along by the side of the car, and in that manner received the injury, he could not hold the company liable. In such case he probably would be held to have assumed the risk. Baxter v. Minneapolis, St. P. & S. S. M. Ry. Co. 104 Minn. 230, 116 N. W. 474. But the injury did not so happen. The evidence tends to show that the conduct of plaintiff on this occasion was the customary method of boarding the train at this place and under the circumstances stated. Plaintiff testified that he had pursued that course during practically all of the time of his service with defendant in •connection with this train. It appears from the evidence that the only apparent danger of so doing is from tripping or falling, or coming in contact with a switch-stand or other obstacle near the
The evidence offered by plaintiff, though uncontradicted in some particulars, was not left unchallenged in essential respects. The claim of defect in the trap-door was denied, and the evidence offered by defendant tended to show that it was not out of repair at the time in question. And, while no rule of tho company prohibiting employees from entering trains in the manner adopted by plaintiff was shown, the conductor of the train testified that he warned plaintiff of the danger thereof, and instructed him, on occasions of this kind, to leave the vestibule door at the forward end of the smoking-car open and to re-enter the train at that place. This testimony was expressly denied by plaintiff, who insisted that no such instructions had been given him and that he pursued the custom stated with the knowledge of the conductor and without objection from him. The truthfulness of the witnesses was for the trial court and jury. The jury gave credit to the testimony of plaintiff, and the trial judge approved their conclusion. The question being simply one of verity
4. Tbe further contention that the damages are excessive is not sustained. If the evidence offered by plaintiff and his witnesses is to be believed, the injured thumb is permanently impaired and rendered practically useless. Such being the case the verdict for $1,500 is not excessive.
Order affirmed.
[35 St. 65, U. S. Comp. St. Supp. 1911, p. 1322].