133 Minn. 203 | Minn. | 1916
Action to recover for the death of plaintiff’s intestate while in the employ of the defendant. There was a verdict for the plaintiff. The alternative motion of the defendant for judgment or for a new trial was denied. From the judgment entered upon the verdict it appeals.
1. The plaintiff’s intestate, Charles E. Thompson, was killed at Hed
2. Thompson was on top of one of the cars just prior to making the cut. He was directed by the conductor to uncouple. He went down the ladder at the end of the car between the two which were to be uncoupled. There was no side ladder. The custom was, in operations like this, to stand on the sill at the end of the car and pull the pin.
The defendant claims that as a matter of law Thompson assumed the risk. The court was not asked to charge and did not charge upon the assumption of risk. The question upon this appeal is whether as a matter of law Thompson assumed the risk, for if he did the motion to direct a verdict should have been granted. An employee in a case to which the Federal Employer’s Liability Act is applicable does not assume the risk of the negligence of a fellow servant. The defendant does not claim otherwise. Its claim is that Thompson was familiar with this operation and assumed whatever risk there was connected with the doing of the .work as it was done; and that in any event he should have swung around the side of the car, stood in the side stirrup, and from there lifted the pin by the use of the pin-lifter, and should not have uncoupled in his" position between the cars, and that in doing as he did he assumed the risk. It may be conceded that Thompson assumed the ordinary danger resulting from the bumping or jerking of the cars in the usual operation, or, which is the same thing in result, that the defendant was not negligent
The trial court was of the opinion upon the hearing of the alternative motion that there was no question of the assumption of risks involved. This may be so. We have, however, considered the question from the point of view most favorable to the defendant. In no event can it be held that there was an assumption of risks as a matter of law.
3. It is a further contention of the defendant that the cause of the death of deceased is merely conjectural. We cannot so hold. It was a matter of fair inference by the jury that an unexpected jerk coming from
We have examined all the other claims of the defendant but do not find it necessary to discuss them.
Judgment affirmed.