152 Minn. 226 | Minn. | 1922
Plaintiff was head brakeman on one of defendant’s freight trains. On September 16, 1920, he was injured when he fell from the train while it was running between Cokato and Smith Lake in this state. He brought this action under the Federal Employers Liability Act, charging defendant with negligence in the following particulars:
The jury were instructed not to consider the evidence relating to the alleged defective condition of the reverse lever, but that plaintiff was entitled to a verdict if the handhold was defective or if the motion of the train was suddenly and violently checked without warning to plaintiff and his injury resulted proximately from either cause. A verdict was returned in plaintiff’s favor for $81,000. Defendant moved for judgment notwithstanding or for a new trial. The motion for judgment was denied. The motion for a new trial was granted, unless plaintiff consented to accept a reduction of the verdict to $24,000. He consented to the reduction and defendant appealed.
There was evidence tending to show that the handle of the hatch cover on the refrigerator car next to the engine was missing. It was attached to a block of wood fastened by screws to the roof of the car near the handhold alleged to have been defective. The Federal Safety Appliance Act does not extend to hatch handles on refrigerator cars. The accident happened at about one o’clock in the morning. Seven or eight hours later, a section man found a hatch handle on the ground beside the track at the place wnere plaintiff fell from the train. The screws were still in the block of wood and showed that they had been pulled out of the roof of the car. Defendant’s inspectors who examined the car soon after the accident testified that they found the handhold firmly bolted to the roof of the car; that there was rust on the thread of the bolts, indicating that they had not been recently disturbed; and that the hatch handle was not to be found. Defendant contends that it was conclusively shown that plaintiff grasped the hatch handle instead of the handhold when he attempted to descend from the car, that it gave way, and, as a result, he fell. Plaintiff testified that as he started to go over the end of the car the “grab iron fell loose” and he lost his
Plaintiff testified that the reverse lever on the engine was hard to shift; that on the night in question the engineer asked him to help pull it up and that it took all his strength to do so. This was denied by. the engineer. Plaintiff further testified as follows:
“When I got to the refrigerator car * * * and was just in the act of going down the end ladder on that car when that engine seemed to stop just momentarily * * * and the cars came together and it knocked me head first down, and the grab iron fell loose, and, of course, I lost my balance and fell down.”
Also that when the engine stopped there was a sudden violent jerk, and that the train was then running at a speed of 15 or 20 miles an hour. The train was composed of 52 cars, 10 loaded with horses and 13 with cattle, in charge of two men whoi were in a passenger coach ahead of the caboose. They were awake when the accident happened and testified that there was no jerk of the train on the run from Cokato to Smith Lake, that it ran along in the ordinary way, and that none of the horses or cattle were injured on the trip. The train men had set a table for supper in the caboose. None of the dishes were broken or thrown from the table.
The engineer testified that while running between Cokato and Smith Lake he did not shift or attempt to shift the reverse lever or apply the air brakes, or shut off the throttle valve. Plaintiff did not profess to know what caused the engine to stop, but testified that he knew from experience that, if the reverse lever was pulled
Upon this state of the record, the ultimate question is this: May negligence be established by showing that the forward motion of a freight train was suddenly and violently checked and the cars jerked without also showing that it was due to some negligent act or omission on the part of defendant’s employes in charge of the train? Martyn v. Minnesota & I. Ry. Co. 95 Minn. 333, 104 N. W. 133; Owens v. Chicago G. W. R. Co. 113 Minn. 49, 128 N. W. 1011; Beaton v. Great North. Ry. Co. 123 Minn. 178, 143 N. W. 324, and Hunt v. Chicago, B. & Q. Ry. Co. 181 Iowa, 845, 165 N. W. 105, are cited to support a negative answer, and La Mere v. Railway Transfer Co. 125 Minn. 159, 145 N. W. 1068, Ann. Cas. 1915C, 667, to support one in the affirmative. Many cases are collected in Hunt v. Chicago, B. & Q. Ry. Co. and the writer of the opinion in that case gathered from them that the jerking of a freight train, even though severe and unusual, is not of itself evidence of negligence as to employes operating the train. None of our own decisions contain a statement so broad and general.
In the Martyn case, the charge of negligence was that as plaintiff attempted to board an engine the engineer suddenly started it running at a much greater rate of speed. A recovery was denied because there was no proof that the engineer opened the throttle valve and so caused the engine to shoot ahead.
In the Owens case, there was a sudden stoppage of the train and proof sufficient to justify the jury in finding that it resulted from
In the Beaton case, it was said that the bringing of cars together with unusual force is an element to be considered in determining whether a railroad company was negligent, but is not in itself evidence of negligence under any and all circumstances. A recovery was denied for want of evidence of the circumstances under which a violent impact of cars occurred or of what occasioned it.
In the La Mere case, the charge of negligence was that the engineer made an emergency stop when there was no emergency, and that the jerk of the train threw plaintiff from the side of a car down which he was climbing. There was evidence to support the charge and a recovery was sustained.
In Fry v. Minneapolis, St. P. & Sault Ste. M. Ry. Co. 141 Minn. 32, 169 N. W. 147, the charge was that a negligent application of the air brakes caused the train to give two violent jerks which threw plaintiff off. The court said that his right to recover depended upon the sufficiency of the evidence to support the finding that the air brakes were negligently applied by the engineer.
As we read these decisions, it has not yet been held that a sudden and momentary checking of the motion of a freight train is of itself proof of negligence in its operation. In each case where a recovery was allowed there was proof of some specific act of the engineer which was of a negligent character. In the case at bar, viewing the evidence in the light most favorable to plaintiff, all we have is this: Suddenly, for no apparent reason, an engine, pulling a heavy freight train at an ordinary rate of speed, stops for an instant and then goes on as before. The train is jerked violently. There was no application or occasion for -an application of the air brakes and no explanation of the extraordinary circumstance. If the engineer had reversed the engine, this might have happened. Therefore, no other cause for the momentary stop being shown, plaintiff’s theory is that it did happen. It seems to us that this is purely conjectural, and, of course, a verdict cannot stand if based upon mere possibility or
When plaintiff was missed, George A. Coppersmith, one of defendant’s conductors, took an engine and caboose and went back to look for him. He arrived at the place of the accident at the same time as a farmer named Preus. When plaintiff was giving his testimony in chief, and after he had stated how he was hurt, he was asked this question:
Q. Was there any talk between you and him (Coppersmith) in regard to the happening of the accident?
A. Yes, sir.
Q. This talk * * * was about an hour and a half after you were hurt, was it?
A. Yes, sir; something like that.
Q. Now, I wish you would tell the jury what you said to Mr. Coppersmith regarding how the accident happened and what tie said to you.”
Objection was made on the ground that the question called for hearsay testimony and a self-serving declaration and that there was no foundation for the admission of a res gestae statement. The objection was overruled and plaintiff answered:'
“He says, ‘How did it happen, Buddy,’ and I said, ‘The engineer jerked the cars, the handhold gave way and I fell.’ ”
Subsequently and without objection testimony to the same effect was given by Mr. Preus. In view of this, if it was error to receive plaintiff’s testimony, it is doubtful whether the error was prejudicial. But since there is toi be a new trial, it is proper to indicate our views respecting the admissibility of the testimony objected to. In harmony with the decided weight of authority, this court has adopted the rule that in general the testimony of a party may not be con
It is suggested that plaintiff’s declaration, though self-serving, was so closely connected with the accident that it must be regarded as a spontaneous utterance, and hence was properly received in evidence as part of the res gestae. To say the least, this is doubtful. A considerable period of time intervened between the accident and the declaration — enough to permit of afterthought, which the law distrusts. There was a longer interval of time than in any case where the admission of declarations has been sustained. State v. Alton, 105 Minn. 410, 117 N. W. 617, 15 Ann Cas. 806; Lambrecht v. Schreyer, 129 Minn. 271, 152 N. W. 645, L. R. A. 1915E, 812; Meyer v. Travelers Ins. Co. 130 Minn. 242, 153 N. W. 523; Roach v. Great Northern Ry. Co. 133 Minn. 257, 158 N. W. 232; State v. Rothi, 152 Minn. 73, 188 N. W. 50. Conceding for the purpose of this discussion that, in the exercise of the broad discretion possessed by the trial court, it was not required to reject the testimony for this reason, another difficulty is encountered.
Plaintiff had testified fully to the circumstances under which he was injured. The jury had his sworn statement. He was not impeached by proof of contrary statements out of court. In effect he was permitted to give in evidence his unsworn self-serving declaration otherwise clearly inadmissible on the theory that because the declaration was part of the res gestae he might testify that he had made it and that, if made, it tended to prove that the facts were as he had related them from the witness stand. In support of this theory, it may be argued that the law permits one who heard the spontaneous utterance of a party to testify to it, and hence there is no good reason why the party himself may not testify to his own exclamations. In Lambrecht v. Schreyer, supra, it- was said that
The order denying a new trial is reversed and a new trial granted.
