62 Minn. 530 | Minn. | 1895
Action brought for the benefit of the plaintiff's minor son, to recover damages for personal injuries to the son, alleged to have been caused by the negligence of the defendant. Verdict and judgment for the plaintiff, from which the defendant appealed.
A former appeal in this case was heard in this court, resulting-in a reversal of a judgment in favor of the plaintiff, and the granting of .a new trial, on the ground that the evidence did not justify the verdict (58 Minn. 120, 59 N. W. 1082), to which reference is here made for a concise statement of the facts of the case.
The former appeal settled certain propositions of fact and law, which must be accepted as controlling on this appeal, as the evidence on the second trial in no manner modifies them. They are, briefly stated, that the position of the injured boy on the flat car was not a dangerous one if the engine had been backed at the usual rate of speed, but that the evidence was sufficient to sustain a finding that it was backed at an unusual rate of speed; that the boy was a trespasser, or, at most, a mere licensee, to whom the defendant owed no contract duty, nor any duty, until after discovering that he was in a position of danger, and that, to render it liable, it must be made to appear that, after discovering him in a position of danger, its servants failed to use reasonable care to avert the danger; that the danger to the boy arose from backing, at an unusual rate of speed, the engine, with the head section of the train, which had broken in two, down to the rear section, of which the flat car on which the boy was standing was a part, without warning him of Ms danger; that, to charge the defendant with negligence, it was necessary to show that those who were conducting the movements of the engine, or some other employé of the defendant, knowing both that the engine was coming down at an unusual rate of speed and that the boy was on the car, failed to exercise reasonable care to avert the danger, by causing the speed of the engine to be slackened, or by warning Mm of Ms danger; that neither the engineer nor the head brakeman, who were in the direct control of the train, had any knowledge that the boy was on the car; that, while the conductor and rear brakeman knew that the boy was on the car, yet the evidence on the former trial did not show that any one of them knew
1. The first question, then, is, did the conductor know that the boy was on the car, and also that the engine was coming back at an unusual rate of speed?
The burden was on the plaintiff to establish prima facie the proposition that he did, but the plaintiff was not bound to do so by direct evidence, for if, from all the evidence as to the position of the conductor at the time of the accident, he must have known, in the discharge of his ordinary duties as conductor, the rate of speed of the engine, and that the position of the boy was one of peril, a prima facie case is made out. That he knew the boy was on the flat car cannot be questioned, for, when the train broke in two, he was on the flat car next to the one the boy was on, and then alighted, and started forward towards the head of the train. For what purpose he went forward towards the head of the rear section of the train, if it was not to see that the recoupling was promptly and properly made, the evidence does not disclose; for, although he was present at the trial, he was not called to explain where he went and what he did after the break occurred, — a fact peculiarly within his own knowledge. It must, however, be conceded, as was held on the former appeal, that this evidence alone is not sufficient to establish the fact that he did go to, or to a point sufficiently near, the head of the rear section, where he could and must have observed the speed of the train.- But we are of the opinion that on the second trial there was additional evidence on this point, which, taken in connection with the evidence to which we have referred, is sufficient to sustain a finding that the conductor must have known both the boy’s position and the rate of speed at which the engine was coming back. <
The witness Fashon gave evidence tending to show that when the head brakeman was standing near the point where the coupling was to be made, and giving the signals for the head section of the train to-come back, the conductor stood about a rod from him, and at a point where he could see the engine. The evidence of this witness is un
2. The trial court submitted to the jury the question of the knowledge of the rear brakeman, Ralph Painter, as to the speed of the engine and the boy’s position. It is necessary to refer only to the former, for it is manifest that he knew the boy’s position. This brakeman was called by the plaintiff, and testified on this point as follows:
“Q. Now, from where you stood on the south-side track down to where this train broke in two, which way does the track curve, if at all?
“A. Well, there is a slight curve towards the south.
“Q. Towards the direction you were in?
“A. Yes, sir.
“Q. Did you see the head section of this train when it broke in two?
“A. I noticed it when it broke in two; yes, sir.
“Q. How far down the track did it run?
“A. I couldn’t say exactly; not over four car lengths, as near as I can tell.
“Q. Did you see the head section of this train when it was coming-back?
“A. I wasn’t watching it particular; no.
“Q. I say, did you see it?
“A. I couldn’t say as I did see it; no.
“Q. You say that the track curves toward you?
“A. Yes, sir.
“Q. And there was nothing on the south side of the track?
“A. No.
*534 “Q. Was there anything to obstruct your view of this train?
“A. No, sir.”
At the close of his examination in chief, he further testified as follows :
“Q. At what rate of speed do you think that train was coining back, that head section, that day?
"A. I couldn’t say exactly; it couldn’t have been coming very fast.
“Q. About what rate of speed do you think it was coming?
“A. Not over two or three miles an hour.
“Q. You will swear to that, will you?
“A. Yes, sir.”
It necessarily follows from this evidence that this witness saw the head section of the train when it came back, and knew its rate of speed; otherwise, he could not swear that the rate was not over two or three miles an hour. In view of the manner in which he answered the questions of plaintiff's counsel, we are of the opinion that this evidence is sufficient to sustain a finding by the jury that if, in fact, the engine came back at an unusual rate of speed, he must have known it.
3. The question of contributory negligence was one for the jury. The boy testifies that he did not know that the train had broken in two. There were a number of box cars between the car he was on and the front end of the rear section of the train where the break occurred, and it was a question for the jury to say whether or not, under all the circumstances, as disclosed by the evidence, he must have known of the break, and was negligent in remaining on the car. Again, if he did know of the break, it would not be conclusive evidence of his negligence, for it is conceded that his position was not one of danger if the coupling was made in the usual way. He was not bound to assume that it would be made in an unusual manner.
4. This brings us to the exceptions to the instructions of the court which are assigned as error.
It is not necessary to discuss or decide as to the correctness of the general instructions to the effect that the jury should inquire whether or not the employés of the defendant discovered the boy in a place of danger, and failed to use reasonable care to avert such danger, for the court immediately followed this general statement with a limitation of the inquiry to the conductor and the rear brakeman, Painter. The jury were expressly told that the engineer and head brakeman
As to the duty of the conductor, the court charged that “if the conductor knew that the boy was standing upon this flat car, and he also knew the front section of the train was coming back at an unusual rate of speed, and that the boy was thereby subjected to unusual danger, and the conductor at that time was in such a position, and had the authority and right and power to check the speed of the engine, either through signal or otherwise, and he failed to do it, then he would be guilty of negligence.” This is alleged to be error, because the “engineer and head brakeman had exclusive control of the move
The instructions of the trial court, as a whole, were a clear and correct statement of the law of the case as declared by this court on the former appeal.
Order affirmed.
MITCHELL, J., dissents.