83 N.W. 446 (Minn. 1900), 12,132, Jones v. Chicago, St. Paul, Minneapolis & Omaha Railway Company

Docket Nº:12,132 - (218)
Citation:83 N.W. 446, 80 Minn. 488
Opinion Judge:COLLINS, J.
Attorney:D. J. Keefe and Humphrey Barton, for appellant. Pierce Butler and Thomas Wilson, for respondent.
Case Date:July 19, 1900
Court:Supreme Court of Minnesota

Page 446

83 N.W. 446 (Minn. 1900)

80 Minn. 488




Nos. 12,132 - (218)

Supreme Court of Minnesota

July 19, 1900

Action in the district court for Ramsey county to recover $22,075 damages for personal injuries. The case was tried before Kelly, J., and a jury, which rendered a verdict in favor of plaintiff for $1,000. From an order granting a motion for judgment in favor of defendant notwithstanding the verdict, plaintiff appealed. Reversed.


Law of Evidence -- Wisconsin Statute.

The law of evidence is the lex fori. Whether a witness is competent or not, whether certain matters require to be proven by writing or not, whether certain evidence proves a certain fact or not, are to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it. It was, therefore, error for the court below to hold at the trial of this case that a Wisconsin statute which established nothing more than a rule of evidence as to the burden of proof was of force and effect in the courts of this state.

Failure of Proof.

Held, under the rules of evidence and proof as laid down and established in the courts of this state, that plaintiff failed to make a case for the jury.

Judgment notwithstanding Verdict.

Held, further, that the court was in error when it ordered judgment for defendant notwithstanding the verdict. A new trial should have been ordered instead.

D. J. Keefe and Humphrey Barton, for appellant.

Pierce Butler and Thomas Wilson, for respondent.


[80 Minn. 489] COLLINS, J. 2

Plaintiff was a brakeman in defendant's employ upon a train in which were several flat cars, loaded with cord wood, piled in two rows, lengthwise, on each car. At each end of these rows were two upright stakes, which served to keep the wood in place. The lower ends of these stakes rested in iron sockets fastened on a level with the car floor, four by five inches in diameter. It was the usual custom of brakemen when ascending to or descending from the top of these piles or rows as they made their way from one car to another, to seize and rely upon these stakes, which were always put in place by the shippers of the wood, but which at once became car appliances. While the train was in motion, plaintiff walked along on top of the wood, and then, for the purpose of setting a brake, attempted to descend to the car floor. He seized one of these upright stakes, it broke off near the floor, and he was thrown down, receiving the injuries complained of.

It was shown that the stake was somewhat rotten at its center, just where it gave way. There was no proof that it was rotten or defective at any other point; nor was there any evidence in the case [80 Minn. 490] from which it could be held that the defendant had notice of this defect in the stake, or, in the exercise of ordinary care, should have discovered or have known of it. No one saw that it was rotten until plaintiff and other trainmen attempted to sharpen it with an axe at the point where it broke, for the purpose of again inserting it in the iron socket provided therefor. Upon cutting into it, the rotten part was discovered. There was no evidence whatever of it being rotten elsewhere, or that this defect could have been discovered in any other manner than by splitting the stake at this exact point. It was conclusively shown that it was round and covered with bark. It was of live maple, originally five or six inches in diameter. To fit it for the iron socket, it had...

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