42 Minn. 68 | Minn. | 1889
The questions of defendant’s negligence, and contributory negligence of plaintiff, were on the evidence for the jury, and their finding was warranted by the evidence. The eighth assignment of error, based on the court’s refusal to charge that “if the jury find that the engineer blew the whistle before starting the engine, then the plaintiff cannot recover,” involves the question raised by the court receiving the general verdict, when the jury could not agree upon the special question submitted to them, “Did the engineer Minehan sound his whistle before starting his engine, and after the conductor Eeece had signalled to go ahead ?’■ If a finding that the whistle was so sounded would have been decisive against plaintiff’s right to recover, either because establishing his contributory negligence or establishing that defendant was not negligent, then the request ought to have been given, and also the general verdict ought not to have been received without a finding upon the question specially submitted. But unless a finding on that question in the affirmative would have been inconsistent with and have controlled the general verdict, so that defendant would have been entitled to'judgment notwithstanding the general verdict, then a finding on the question would have been immaterial. Had the evidence been'such that the general verdict must rest solely on the fact that the whistle was not sounded, the verdict could not stand unless the jury could find that fact. The evidence, however, was such that the jury might find that defendant was and plaintiff was not negligent, even though the whistle was
The defendant claims that, with respect to the work upon which plaintiff was employed at the time of the injury, the case comes within the proviso to section 1, c. 13, Laws 1887, — the act which makes railroad companies generally liable for injuries done one of their employes through the negligence of a co-employe. The defendant, in 1885, 1886, and 1887, built a new road from Chicago to St. Paul. At the tim'e óf the injury it had been open to public travel and use for about six months. It was filling a swampy piece of land in St. Paul for a yard, doing the work by means of a temporary construction track, and of engines and cars passing over it, carrying earth for the purpose of filling. Of course, this temporary track was not open
Order affirmed.
Collins, J., took no part in this decision.