101 N.W. 183 | N.D. | 1904
Plaintiff. sued to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant, and obtained a verdict for $8,000 damages. Defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial, and appealed from the -order denying both motions.
The complaint alleged, in substance, that on April 10, 1902, the plaintiff was the head brakeman on defendant’s freight train which ran from Grand Forks to Walhalla and return; that while the train was running between Grafton and Minto on the return trip the plaintiff, while in the discharge of his duties, and exercising due care, was proceeding along the top of the train from the caboose towards the engine, and fell off the end of one of the cars, and received the injuries complained of; that, unknown to plaintiff, the train had broken in two, and he fell off of the front end of the rear portion because of the unexpected break in the train. The particular negligence complained of as the proximate cause of the injury is, in substance, that the couplings on the two cars which separated w-ere so imperfectly constructed, and were so twisted and broken, worn and out of repair, that they became disconnected, and thus caused the train to break in two.
The defenses relied upon are that there was no negligence on the ■part -of the defendant; contributory negligence on the part of the
The evidence shows that while the freight train in question upon which plaintiff was employed as head brakeman was running from Grafton to Minto, at about 11 o’clock on the night of April 10, 1902, the train parted near the middle. The train consisted of about forty cars. The engineer and fireman did not notice the break, and went on with the front portion of the train to Minto, a distance of about ten miles from Grafton, before they discovered that the train had parted. The rear portion, upon which the plaintiff was riding, traveled on, with gradually diminishing speed, until it came to a stop about four and one-half miles from .Grafton. The plaintiff’s post of duty was at the front end of the train, but he had got into the caboose when the train pulled out of Grafton, and stayed in the caboose long enough to eat bis lunch. After eating his lunch he started for the front end of the train, and in order to do so he had to pass over the tops of the cars between the caboose and the engine. When he reached the front end of the detached portion of the train, he discovered the break, but, as he claims, too late to save himself, and consequently walked or fell off the front end of the front car, and was injured. After he fell, the detached part of the train moved only five or six feet before coming to a stop. All the cars in the train were equipped with the automatic couplers in common use on such trains. The couplers between the rear car of the front part of the train and the front car of the rear portion of the. train had in some manner become disconnected. It is conceded that such couplers as those in question may, and, not infrequently do, part by reason of any one of three causes: (1) By slipping apart by reason of wear; (2) by the pin “pinching” up so as to permit the knuckles to unlock; (3) by the “jumping” of the drawbars one above the other. The first only, of the above three causes, under the facts of this case, can be attributed to defendant’s negligence. Under such circumstances mere proof of the accident does not cast upon defendant the burden of showing the real cause of thé injury and negativing possible negligence. The burden of proof was upon the plaintiff to prove by a preponderance of the evidence that the parting of the train was due to the wear of the couplers. Balding v. Andrews, 12 N. D. 267, 96 N. W. 305; Smith v. Bank, 99 Mass.
Appellant, however, insists that it is entitled to judgment notwithstanding the verdict, under chapter 63, p. 74, Laws 1901. It is contended that the evidence in this case is insufficient to establish any negligence on defendant’s part; that it shows that the injury was due to plaintiff’s -own want of care, and that the injury resulted from a hazard' of the business the risk of which plaintiff assumed by his contract of employment; that defendant’s motion for a directed verdict on these grounds should have been granted, and hence that a judgment notwithstanding the verdict should be ordered. Judgment notwithstanding the verdict is not warranted in every case where a directed verdict has been erroneously denied. To justify such judgment, the record must affirmatively show not only that the verdict is not justified by the evidence, but it must also appear from the nature of the case and the circumstances -connected with it, that there is no reasonable probability that upon another trial the defects in or objections to the proof necessary to support the verdict may be remedied. Richmire v. Elevator Co., 11 N. D. 453, 92 N. W. 819; Aetna Indemnity Co. v. Schroeder, 12 N. D. 110, 95 N. W. 436; Merritt v. Ry. Co. (Minn.), 84 N. W. 321. The record before us tends rather to suggest than- to negative the probability of additional evidence being produced on another trial. relative to the question of defendant’s alleged negligence and plaintiff’s alleged want of care. Such additional evidence, if fur
As a guide in the future disposition of this case, we will state briefly the reasons why we deem the evidence insufficient to establish defendant’s negligence. Under the circumstances disclosed by the evidence in this case, and assuming that the parting of the couplers was the proximate cause of the injury, it is essential to plaintiff’s right to recover that he establish by a preponderance of the evidence two facts: (1) That the train parted by reason of defective couplers; (2) that the defect’ in the couplers was known, or ought to have been known, to the defendant. The complaint charged the defendant with negligence in this: That the defendant had omitted to perform the duty which it, as master, owed to its employes to furnish proper appliances and to keep them in repair. It was undisputed that the first part of this duty had been performed. The couplers were free from defects when originally placed in the cars. It is claimed, however, that they had become unfit for use by wear. It is not claimed that the defendant, or any of its agents, servants or employes, had knowledge of the unsafe condition of the couplers. With respect to the master’s duty to keep appliances in repair for the use of his employes the rule is that the master must use ordinary care (such care as a prudent man would ordinarily exercise), and such diligence, in the way of inspection, to detect
The order denying the motion for a new trial is reversed, and a new trial ordered.