The complaint alleged that the defendants, the Great Northern Railway Company, the Eastern Railway Company, and A. Guthrie & Co. were engaged in the construction of a line of railway known as the “Fosston Extension,” and that the defendants P. Brennan & Son were independent contractors for the laying of the track on such line; that Brennan & Son agreed to lay the track at a stipulated price, and to furnish the labor required therefor, and that the other defendants were to furnish all the material for such track as it should be laid and as would be required, and transport the same, together with Brennan & Son and their laborers, from the place of operation to the boarding camps along the line; that plaintiff’s intestate, John J. Sharp, was an employee of Brennan & Son, engaged in laying the track, and that during the construction of the railroad the railway companies and Guthrie & Co. provided and operated a construction train, composed of a locomotive and tender and several flat and box cars, for the purpose of carrying from point to point along the line all materials that should be required, and that such construction train was also used for the purpose of transporting the men back and forth between their
All of the defendants answered jointly, and alleged that at the time mentioned in the complaint Brennan & Son were engaged by defendants A. Guthrie &. Co. in the capacity of superintending and overseeing the laying of the track, and that they were not independent contractors, and alleged that plaintiff’s intestate was employed by Brennan & Son, the agent of Guthrie & Co., and that the train referred to was an appliance used by Guthrie & Co. for the general object and purpose of completing the work of construction, and that all on the train wore in their service, and coworkers and servants with the defendants Brennan & Son, and with plaintiff’s intestate.
During the course of the trial it appeared conclusively from the evidence that the Great Northern Railway Company had no interest in the controversy; that Guthrie & Co. had taken a contract from the Eastern Railway Company for the construction of the entire extension of the railroad, and that Brennan & Son had an independent contract for the laying of the track, which included ties and rails; whereupon the action brought was dismissed as to all of the defendants except Guthrie & Co. A verdict was recovered by plaintiff, and defendants appealed from an order denying a motion for a new trial.
In the course of trial appellants offered evidence tending to show that the construction train was under the control of, and its operation directed by, one Quinn, the foreman of Brennan & Son, and that the train was not being operated by Guthrie & Co. at the time of the accident; most of which was objected to, and refused by the court upon the ground that it was inadmissible under the pleadings. In this, we think, the court was correct. By their
The next proposition we have to consider is whether the evidence tended to show appellants guilty of negligence in operating the train. The same question, practically, was before this court on very similar evidence in the case of Mathews v. Great Northern Ry. Co., 81 Minn. 363, 84 N. W. 101.
The evidence in the present cáse is quite conclusive that the accident was caused by dump-car ties that had been placed between the rails to effect a crossing. There was evidence tending
In opening the case to the jury, counsel for respondent made a statement to the effect that the cause had been tried once before, and that the attorneys were familiar with the law and evidence; that the other trial resulted in a verdict for respondent, but, through some misconduct of one of the jurors, a new trial was granted. Exception was taken by appellants, who assigned the same as error. We are unable to see in what manner the jury were prejudiced by such a statement. Perhaps it was not commendable to refer to the former trial, but, in view of the fact that the court cautioned the jury to consider only the evidence in the case, we cannot see how it became prejudicial.
The ruling of the court was correct in refusing to direct the jury to find specially whether Quinn, or any of the trainmen, was guilty of negligence for the reason that the trainmen were not, under the issues before the court, co-employees or fellow servants of respondent’s intestate, and for the reason stated the evidence was not sufficient to justify a holding that Quinn was operating the train, even if that issue had been before the court.
It is unnecessary to refer to the other assignments.
Order affirmed.