125 Minn. 348 | Minn. | 1914
Action by the plaintiff as administrator of Dennis E. Wiles to recover damages caused by his death, which it is alleged resulted from the negligence of the defendant. There was a verdict for the plaintiff. Defendant moved for judgment notwithstanding the verdict. The motion was granted. Judgment was entered. The plaintiff appeals from the judgment.
The ultimate question is whether the evidence sustains the verdict. There are three included questions:
(1) Whether the doctrine of res ipsa loquitur applies to an employee situated as the deceased was.
(2) Whether the doctrine is applicable when the injury occurs through the pulling out of a draw-bar on a freight train.
(3) Whether the negligence of the deceased, assuming him to have been negligent, was the sole proximate cause of his death.
The deceased was the rear brakeman on a freight train of the defendant proceeding easterly between Grotto and Skykomish, Washington, closely followed by a passenger train drawn by two engines. Both trains were engaged in interstate commerce. The freight train was running as an extra without a time-card. It was made up of some 46 cars. It broke in two by the draw-bar pulling out of the sixth car from the engine. The train had just rounded a curve and was again on a straight track. The two parts of the train, when they came to a stop, were separated by a half of a car length. It was about one o’clock in the morning. The passenger train crashed into the freight, causing the death of decedent. His body was found in the smoke-box of the forward passenger engine. What caused the pulling out of the draw-bar is not shown. There is no direct proof that it was defective or that the defendant was negligent in the care or use of it. There is an absence of oral evidence. The plaintiff relies upon the doctrine of res ipsa loquitur in proof of negligence.
2. The next question is whether the pulling out of the draw-bar affords a proper basis for the application of the doctrine of res ipsa loquitur. The limits of the doctrine are stated in 4 Wigmore, § 2509, as follows:
“(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.”
This is substantially the doctrine stated in Jenkins v. St. Paul City Ry. Co. 105 Minn. 504, 117 N. W. 928, 20 L.R.A.(N.S.) 401, and in Olson v. Great Northern Ry. Co. 68 Minn. 155, 71 N. W. 5.
In Rose v. Minneapolis, St. P. & S. S. M. Ry. Co. 121 Minn. 363, 141 N. W. 487, following the principle of the other cases, the doctrine was applied to the bursting of the air hose on a moving train. A number of applications are given in the notes to 4 Labatt, Master & Servant, (2d ed.) § 1601, 3 Bailey, Per. Inj. § 797, and 4 Wigmore^ Ev. § 2509. Not all are-consistent. The case of Looney v. Metro
“It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”
This expresses the good sense of the rule; and its application puts no unjust burden on a defendant who furnishes and has control of the instrumentality through which the injury comes, and who, from a practical standpoint, is the only one in possession of evidence which will explain the cause of the occurrence. The defendant in possession of the appliance and in charge of the operation of the train can, without undue hardship, ascertain its condition and preserve evidence of it. Unless the rule of res ipsa loquitur applies, the substantial result is that one, however innocently injured through the pulling out of a defective draw-bar, or the representatives of one killed, cannot successfully maintain an action for the injury or death because of his inability to obtain evidence of the precise defect. The application of the doctrine is in aid of the fair administration of justice and is not unjust to the defendant.
The situation here involved renders applicable the doctrine of res ipsa loquitur and the jury were justified in finding negligence from the fact of the accident.
We pass, as unnecessary to the determination of the case, the question whether the defendant could he held liable for negligence in per
3. Both trains were engaged in interstate commerce. If the injury resulted from the concurring negligence of the deceased in failing to warn the approaching train, and of the railway company in failing to furnish a proper appliance in the way of a draw-bar, the doctrine of comparative negligence is applicable under the Federal Employer’s Liability Act of April 22, 1908 (35 St. 65, c. 149.
mate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.” 1 Street, Found. Leg. Liab. 110. The thought expressed in the quotation is stated in substantially equivalent language in Schumaker v. St. Paul & D. R. Co. supra, Healy v. Hoy, supra, and Moores v. Northern Pacific Ry. Co. 108 Minn. 100, 121 N. W. 302. Under the Federal statute contributory negligence reduces damages but does not prevent a recovery; and we think the trial court was in error in holding that the sole proximate cause of decedent’s death was his negligence.
The defendant moved for judgment notwithstanding the verdict and not in the alternative. Upon the going down of the remittitur judgment will be entered on the verdict. Judgment reversed.
[U. S. Comp. St. Supp. 1911, p. 1322.]