276 N.W. 744 | Minn. | 1937
Plaintiff alleged that the freight car had become defective and remained so due to the negligence of the Minneapolis St. Louis Railway, that the Great Northern negligently received it and negligently failed to repair it. The court charged that the car must have been defective upon delivery to the Great Northern for the Minneapolis St. Louis Railway to be liable; that the Great Northern might assume the car was in good condition when delivered and might only be found liable for negligently failing to discover the defect in the door; that the fact that the door fell was in itself no evidence of negligence; and that if the sole cause of the accident was the manner in which the pry bar was used defendants were not liable. Prior to the charge counsel for the state requested no instructions nor did he after the charge when the court inquired of counsel if there was anything more either desired. Nor did counsel for plaintiff object or except to the charge as given.
There was a verdict for defendants, and plaintiff, in its motion for new trial and on this appeal from the order denying a new trial, assigns as error (1) that certain parts of the charge do not accurately state the law; (2) that the trial court erred in submitting to the jury the question whether the acts of the elevator employe were the sole cause of the accident because of the lack of evidence to support such a finding; and (3) that the trial court erred in charging the jury that the fall of the door was not evidence of defendants' negligence.
Appellant assigns as error the following portion of the court's instructions:
"Now the plaintiff in this case is bound to prove by a fair preponderance of the evidence that this car was in an unsafe and defective *418 condition when it was delivered by the M. St. L. to the Great Northern."
Taken alone, the instruction complained of was incorrect, but when considered in connection with what preceded and what followed in the court's instructions, we do not see how the jury could have been misled by the statement complained of. The court had just instructed the jury:
"If the car was in a reasonably safe condition when delivered by the M. St. L. to the Great Northern, the M. St. L. was under no duty to follow the car after such delivery to its destination and thereafter inspect and repair it if found to be defective or out of repair."
Following the instruction complained of, the court charged:
"When a car passes out of the possession and control of the railroad line on which the passage of the car originated, into the possession and control of a connecting railroad line, the connecting line, while the car is in its possession is under the duty of using ordinary care to maintain and keep the car in a reasonably safe and suitable condition for use by those lawfully entitled to it. In this case it appears that the M. St. L. was the originating carrier and the Great Northern was the connecting receiving carrier. It was the duty of the Great Northern, after the car was in its possession, to maintain it in a reasonably safe condition and to exercise ordinary care to keep the car in a reasonably safe condition for the purpose of being used by Lawler and those engaged in the duty of inspection, to inspect the car door and to ascertain if it was in a reasonably safe condition. If the defendant Great Northern failed in this duty, it was negligent."
Plaintiff's counsel did not object or except to the charge and did not call the court's attention to the inadvertency.
1. Inadvertent misstatements, verbal errors, or technical inaccuracies contained in the charge as to matters of law which counsel does not ask the trial judge to correct do not furnish grounds for a new trial. Useman v. Minneapolis St. Ry. Co.
Other errors affecting the charge are assigned, but we find no merit in any of them. The law as given in each instance was substantially correct. Regardless of error, however, no requests were made, no objections or exceptions taken, nor were inadvertencies called to the attention of the court in connection with any of the statements now assigned as error.
2. Although the above is decisive of the case, the contentions urged by plaintiff will be considered. There was ample evidence that if the pry bar used by the elevator employe was exerted so as to lift the door, the bottom of the door would be raised from the rollers on which it rested, the flange attached to the door which extends downward behind the rollers would no longer serve its purpose of holding the door in place, and the top of the door would be forced out of the housing which extends from the side of the freight car and serves as a guide for the top of the door, and the door would thereupon fall from the car. The elevator employe denied that he used the bar in that manner, but the jury might properly infer from the manner in which the accident happened that this was its cause. The court's instruction that if the accident was solely due to the acts of the elevator employe defendants would not be liable was therefore correct.
3. Plaintiff also contends that the fact that the door fell was evidence that the rule of res ipsa loquitur applied. Resort to that *421
doctrine may be had only when the instrumentality causing the harm is under the exclusive management and control of defendant. Kleinman v. Banner Laundry Co.
Order affirmed.
MR. JUSTICE PETERSON, having been attorney general when this action was commenced in the court below, took no part in the consideration or decision of the case. *422