150 Minn. 97 | Minn. | 1921
Alleging that the death of her intestate, Clyde' McNamee, resulted from the negligence of defendant, plaintiff sued for damages. The trial court submitted the case to the jury, who returned a verdict for plaintiff. Thereafter the court directed judgment for defendant notwithstanding the verdict and plaintiff appealed from the judgment so entered. The only question presented by the appeal is whether the evidence was sufficient to sustain the verdict.
Two grounds of negligence are alleged: That the space between the tracks was not sufficient to afford a safe place for- employes to stand while cars were passing over both tracks, and that there were “low joints” on track 5 which caused cars passing over it to sway or lurch from side to side.
This yard was laid out and constructed some SO years ago. Plaintiff’s evidence is to the effect that in yards constructed at that time the usual, or standard, clearance between tracks was six feet and six inches as in this yard, but that in yards constructed recently the usual clearance is seven feet and six inches. The duty of a railway company to exercise
The theory of plaintiff is that McNamee was between tracks 5 and 6, and that one of the refrigerator ears swayed or lurched against him in such a manner that he fell beneath the wheels of the rear refrigerator car. The theory of defendant is that McNamee was between the rails of track 5, and' while there was struck and run over by the refrigerator cars. Plaintiff concedes that no recovery can be had if McNamee was not between tracks 5 and 6 but between the rails of track 5 at the time of the accident, and relies on the testimony of Cone as justifying the jury in finding that he was between tracks 5 and 6.
The yardmaster testified that a few minutes after the accident, when he was seeking information for the purpose of sending a report to the office, Cone stated that McNamee was between the rails of track 5 and that Cone repeated this statement to him the following morning. On the following afternoon Cone’ made a written statement to the claim agent in which he again said that McNamee was between the rails of
Mr. McNamee was found beneath the rear trucks of the rear refrigerator car, lying flat on his back crosswise of track 5—his feet near the south rail and his head and shoulders projecting beyond the north rail. The wheels' had passed over his chest. All the witnesses who saw him in this position state that he had not been dragged along the .track. The cars were drifting and must have been moving very slowly when they reached McNamee, for they came to a stop1 while the rear ear was still over him. Consequently, according to plaintiff’s witness Eoe, who was the only witness who testified concerning this matter, they could not have had sufficient momentum at this point to cause them to lurch suddenly or violently when passing over a low joint. If Mr. McNamee was between the cars on track 5 and those-on track 6, we are unable to conceive how the slow swaying of the cars on track 5, conceding that they did not lurch against him, could have caused him to fall in such a manner as to place his body in the position in which it was found, especially in view of the fact that the body had not been dragged along the track.
All the facts are much more consistent with the theory that when he was struck he was in front of the on-coming cars. It is true that plain
“The burden of proof is upon the plaintiff to prove that some negligent act of defendant caused the death of deceased. It is not incumbent on the defendant to show how the accident happened. If the cause of> its happening is not estabEshed, the defendant is entitled to prevail. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility of injury from defendant’s acts.”
The evidence furnishes no basis for an inference that the accident happened in the manner claimed by plaintiff rather than in the manner claimed by defendant, and the trial court was correct in holding that plaintiff had fathed to establish a cause of action.
Judgment affirmed.