44 Minn. 17 | Minn. | 1890
The plaintiff, who was 20 years of age, was one of a crew of sectionmen on the defendant’s railroad. This action is pros-, ecuted to recover for an injury suffered by him while engaged in that employment. After a verdict for the plaintiff, the court, on motion of the defendant, granted a new trial. From that order this appeal, was taken.
The plaintiff, with others of the sectionmen and their foreman, had their hand-car at a switch where a side’or spur track connects with the main track of the railroad. A freight train came from the, south, and stopped, or nearly stopped, at this point. The engineer informed the foreman that he wanted to place on the side track some cars from his train. This was to be done by running the train north, on the main track until it passed the switch, so that the cars could be backed in, southward, on the side track. In order that this might,
It is now contended’ that the order appealed from should be sustained because the persons operating the train were fellow-servants with the plaintiff,' for whose negligence the defendant was not re-spohsible, under the common-law doctrine applicable to such cases, and that the statute.of 1887 relating to the liability of railroad corporations for the negligence of fellow-servants, as construed in Lavallee v. St. Paul, M. & M. Ry. Co., 40 Minn. 249, (41 N. W. Rep. 974,)
But the order should be sustained upon the ground that the evidence bearing upon the questions of the negligence of the engineer and fireman, and of the contributory negligence of the plaintiff, was not manifestly and palpably in favor of the verdict; and hence, under the rule of Hicks v. Stone, 13 Minn. 398, (434,) followed in numerous decisions of this court, the order of the trial court granting a new trial should not be set aside. By this we do not mean to intimate that there was not evidence tending to support opposite conclusions concerning the negligence of the engineer and the contributory negligence of the plaintiff; and the court was right in submitting the case to the jury upon these issues. Whether the engineer was negligent in following the hand-ear so closely would depend largely upon the fact as to whether he had reason to expect -that the sectionmen would stop their car, and take it off the track, or supposed that they were simply to run on ahead of the engine as far as might be necessary to enable the train to clear the switch, and to run back on the side track. On the other hand, whether it was negligence for the sectionmen to stop, and take their car off the track, would be affected by what might be deemed to be the fact as to their understanding that the engineer expected them to do so, and that he was operating his train so that he could control it with safety to them. The deter-
Order affirmed. ■