126 Minn. 430 | Minn. | 1914
On the tenth of September, 1913, plaintiff, in attempting to. descend from a box car to throw a switch, was struck by a cattle chute which, it is claimed, was negligently constructed too near the-track, of which fact plaintiff was not informed. Plaintiff received and was treated for a fractured arm, and also claims other injuries. A verdict of $16,000 was awarded. Defendant moved for judgment notwithstanding the verdict, and in case of denial thereof, for a new trial. The court denied the motion on condition that plaintiff consented to a reduction of the verdict to $8,000. The defendant appeals.
For 12 days previous to his injury plaintiff had been upon the defendant’s freight trains as a student brakeman under the following written agreement signed by him: “I, the undersigned, state that I am at least twenty-one years of age and desirous of qualifying myself to perform the service of brakeman and for that purpose do hereby apply to the Great Northern Railway Company for the privilege and opportunity of learning the duties pertaining thereto.
“I understand and fully appreciate the dangers and risks of personal injury incident to railway operation, and, in consideration of said company granting to me the privilege, license and permission to enter upon its property, trains and cars, for the purpose of learning and familiarizing myself with the duties required of a brakeman, I hereby assume all such hazard and risk of personal injury and damage, whether such injury or damage are the result of my own negligence, inexperience or lack of knowledge, or are in any manner caused by the negligence of said company, defects in its premises
The court held that plaintiff was an employee of the defendant as a matter of law, and since it was admitted that the train from which plaintiff fell was engaged in interstate traffic, the court excluded the contract as void and of no effect under the Federal Employer’s Liability Act (Act April 22, 1908, c. 149, 35 St. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). We think there was no prejudicial error in the ruling. For, although there is nothing in the contract itself indicating that plaintiff as student brakeman was to render any .service whatever for defendant, the testimony conclusively shows that he was expected to perform, and did perform, such tasks as were assigned him by the members of the crew in charge of. the trains. He helped load and unload freight at way-stations, threw switches .and did whatever he was ordered to do in the operation of the train. Under the following decisions he was an employee and not a licensee. Weisser v. Southern Pac. Ry. Co. 148 Cal. 426, 83 Pac. 439, 7 Ann. Cas. 636; Huntzicker v. Illinois Cent. Ry. Co. 129 Fed. 548, 64 C. C. A. 78, and Atchison, T. & S. F. Ry. Co. v. Fronk, 74 Kan. 519, 87 Pac. 698, 11 Ann. Cas. 174. We are cited to no decision to the contrary, and have found none.
The plaintiff was taken to a hospital after his injury and the fractured arm set and placed in a plaster cast. He complained of no other pain or injury, according to his own testimony, until two weeks after the accident, when he states that he at one time told the physician that one of his hips pained him, and that he had headaches. When the cast was removed he insisted on leaving the hospital, but was told by the doctor to come back daily for the necessary
The facts of this case present a situation where this observation as to the duty of the trial court is pertinent: “Having reached the conclusion that the verdict should be reduced one-half, the trial court should have gone one step further and ordered a new trial.” Germann v. Great Northern Ry. Co. 114 Minn. 247, 130 N. W. 1021. The trial was had barely two months after the injury. In the nature of things complete recovery of the fracture was hardly to be expected. There is nothing in the evidence showing a
Compelling a plaintiff in a personal injury action to submit to a physical examination is largely within the sound discretion of the trial court. Wanek v. City of Winona, 78 Minn. 98, 80 N. W. 851, 46 L.R.A. 448, 79 Am. St. 354. And where one examination has been had, a refusal to grant a second will not ordinarily be sufficient grounds for a new trial. But we think the circumstances here are unusual. Of course one familiar with personal injury actions knows that a defendant must be prepared to meet injuries and shocks to the nerves and nervous system, for that is almost always alleged and attempted to be proven. But these and other allegations involving the whole body must be considered reasonably when applied to the facts of each case. It is perfectly plain that when plaintiff was examined neither defendant nor any of its medical experts, one of whom was the surgeon who set the arm and had plaintiff under observation and treatment for a month, suspected that he suffered or would claim any evil results from the fall, except such as might be traced to the fractured arm. Moreover during this examination plaintiff himself, as above noted, led them to believe that none other was claimed. Although the sacro-iliac joint is deep-seated and injuries thereto correspondingly difficult to detect, one of plaintiff’s experts claimed that he had located an injury by touch. If he could do so, it stands to reason that defendant’s medical experts could also detect it, or else demonstrate that the
The order in so far as it relates to a new trial is reversed and a new trial is granted.