251 N.W. 532 | Minn. | 1933
Lead Opinion
1. A motion for a directed verdict or for judgment notwithstanding the verdict presents a question of law. The court does not weigh the evidence. It does not determine the credibility of the witnesses. Only in cases where the evidence against the plaintiff is clear, whether the basis of the motion be want of negligence in the defendant or contributory negligence in the plaintiff, will the motion be granted. Sheehy v. M. St. L. R. Co.
2. The plaintiff claims that his injury was caused by the negligence of a coemploye. A railroad is liable to an employe injured by the negligence of a coemploye. 1 Mason Minn. St. 1927, §§ 4933-4934; Seamer v. G. N. Ry. Co.
3. The plaintiff was employed by the defendant as a freight trucker at its freight house in St. Paul. He was 63 or 64 years old and experienced in the work. Four rows of box-cars were spotted along the north side of the freight house, which extended east and west. They were spotted so that their center doors were opposite. The cars were about five and one-half feet apart. Gang planks were placed from car to car so that there was a continuous passage from the freight house through the other cars to the northerly car. The plaintiff and his coemployes were loading a bundle of one-inch iron pipe from the freight house into the westerly end of the northerly box-car. The car was eight feet high. The plaintiff was at the westerly end of the car and was holding above his head the northerly and westerly end of the bundle being loaded. It weighed perhaps 175 pounds. There was some difficulty, because of the length of the pipe, in getting the bundle through the door and into the car. The men were angling the pipe into the car, or "zigzagging" it, as the plaintiff puts it. One of the men was at the easterly end. Another was near the center and somewhat back of the plaintiff. The plaintiff says that in loading before that time there was no man at the center. He says that the man at the center pulled or "surged" against the pipe and that what he did "sideswiped" him against the southerly wall of the car. This would not have happened if there had not been a man at the center; at least the jury could conclude so. The plaintiff, his hands extending above his head holding his end of the bundle, was not in a good position to resist movement at the center. His testimony indicates that the pulling or "surging" was unexpected, unusual, and without warning.
This is all there is to the plaintiff's case. It is enough. The case on its facts is not particularly strong, but from it the jury could find that an unusual pulling or "surging" by the defendant's employe caused plaintiff's injury. The two men working with the plaintiff claimed that the work was done as usual and that nothing outside of the ordinary and expected occurred; the plaintiff, that the movement was unusual and unexpected. The jury was justified *326 in adopting either story and chose that of the plaintiff. Nothing more need be said of the proof of the defendant's negligence.
4. The state railway employers liability act adopts the comparative negligence doctrine. 1 Mason Minn. St. 1927, § 4935; 4 Dunnell, Minn. Dig. (2 ed. Supp.) § 6022s. The provision of the statute is similar to that of the federal employers liability act. 35 St. p. 65, c. 149, § 3; 45 USCA, p. 379, § 53; and see 4 Dunnell, Minn. Dig. (2 ed. Supp.) § 6022k.
But if the negligence of an employe is the sole proximate cause of his injury he cannot recover. See Westcott v. C. G. W. R. Co.
The comparative negligence rule was submitted to the jury. The evidence did not require a finding that the plaintiff was negligent and that his negligence was the sole cause of his injury.
5. The defendant claims that as a matter of law the injury to the plaintiff was the result of an assumed risk. The plaintiff assumed the risk naturally attendant upon doing the work in a usual and proper way. He did not assume the risk of injury from the negligence of a coemploye, at least unless he knew and appreciated it. Kline v. Byram,
Judgment affirmed.
STONE, Justice, took no part.
Dissenting Opinion
I dissent. The jury had no basis for finding the coemploye negligent.
Dissenting Opinion
I agree with Mr. Justice Holt.