135 Minn. 294 | Minn. | 1917
Action for personal injuries in which, at the close of the trial, the court directed a verdict for defendant and plaintiff appealed from an order denying a new trial.
The assignments of error present the single question whether the trial court erred in directing a verdict for defendant. We answer the question in the negative.
The facts as disclosed by the evidence, construed most favorably to plaintiff, are as follows: Plaintiff at the time of the injury complained of was in the neighborhood of 18 years of age, an Austrian, and not very familiar with the English language, though he could speak and understand the same to some extent. He resided at Milwaukee, Wisconsin, but in September, 1913, was at Butte, Montana, in search of employment. He visited an employment agency and was hired with other laborers for some concern engaged in operations in Utah, near the city of Ogden. Plaintiff was not certain of the name of his prospective employer or his place of business. However, he with others so hired, in charge of a foreman, took
Such is the case as made by plaintiff’s testimony, and what has been said covers the evidence in point of substance, and further details are unnecessary. There is no dispute but that plaintiff was injured at the time stated, and that he in some manner fell between the cars of the train, and lost his legs. Two of the trainmen testified that they noticed plaintiff on or near the track as the train was on its way up the grade, which was on a curve, and that in an effort to board the train while it was in motion he received the injury of which he complains. But whether he was thus injured, or in the manner claimed by him was a question of fact, and for the purposes of the case we assume that plaintiff’s story expresses the truth in the premises. And upon that basis we dispose of the appeal.
Plaintiff relies for recovery upon two contentions, namely: (1) That the relation of passenger and carrier existed between the parties entitling plaintiff to protection as such; and (2) that, though plaintiff was not a passenger but a trespasser upon the train, he is entitled to recover for any injury occasioned by the wilful negligence of defendant. And his counsel earnestly insist.that the evidence made both contentions issues of fact, and that the court erred in taking the same from the jury by an instructed verdict. We are unable to adopt that view of the case.
There is no doubt of the fact that from Butte to Ogden plaintiff was a passenger. He was a member of the crew of laborers and his passage was paid to the point of destination beyond Ogden. But when he left the premises of the company at Ogden, on a. mission of his own, remaining
Order affirmed.