Barrett v. Minneapolis, St. P. & S. S. M. Ry. Co.
| Decision Date | 31 October 1908 |
| Citation | 106 Minn. 51,117 N.W. 1047 |
| Parties | BARRETT v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. (two cases). |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; Oscar Hallam, Judge.
Action by Morton S. Barrett, an infant, by F. N. Dickson, his guardian ad litem, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Verdict for plaintiff. From an order denying judgment notwithstanding the verdict, but granting a new trial, both parties appeal. Order affirmed on both appeals.
Action for damages which the plaintiff, a trespasser on the defendant's freight train, claimed to have sustained by being forced, by the wanton act and threat of a brakeman, to jump from the train while it was moving rapidly. Verdict for $26,000. Held, the defendant was not entitled to a directed verdict on the alleged ground that the plaintiff and the brakeman were co-trespassers, nor upon the opening statement of plaintiff's counsel as to the motive which actuated the brakeman, nor because of a rule of the defendant forbidding brakemen to eject any person from a train except by direction of the conductor and in his presence.
A trial court has the right to act upon the facts deliberately conceded by counsel in his opening statement to the jury, and direct a verdict against the plaintiff if such conceded facts would not entitle him to a verdict; but such power must be exercised sparingly, and never without full consideration and opportunity for counsel to qualify his statement, so far as the truth will permit.
A master is responsible for the torts of his servant, done in the course of his employment with a view to the furtherance of his master's business, and not for a purpose personal to himself, whether the same be done willfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instructions of the master.
The trial court did not err in granting a new trial on the ground that the damages were excessive. A. H. Bright and Munn & Thygeson, for appellants.
Edwin S. Thompson, for respondents.
Personal injury action, in which the plaintiff had a verdict, in the district court of the county of Ramsey, for $26,000. The defendant then made an alternative motion for judgment notwithstanding the verdict or for a new trial. The trial court made its order denying the motion for judgment and granting a new trial. Each party appealed.
The defendant's appeal presents the question whether, upon the record, it was, as a matter of strict legal right, entitled to a directed verdict; hence to judgment absolute in its favor. The record discloses evidence sufficient, if satisfactory to the jury, to sustain the finding by them of the facts following:
On August 7, 1907, the plaintiff, a young man about 19 years old, desiring to go from Velva to Harvey, in North Dakota, without claim of right and for the purpose of stealing a ride to his destination, got into one of the defendant's box cars, which was in and near the center of a freight train of 30 or more cars which did not carry passengers. The train started on its way, with the plaintiff in the car; but it stopped some distance beyond Velva, when the plaintiff was discovered in the box car by one of the crew in charge of the train, a brakeman, who directed the plaintiff to ‘unload and stay away from the train,’ which he understood as an order to get out of the car, and he at once complied. After the plaintiff was out of the car and standing on the ground near the train, the brakeman asked him where he was going. The answer was: ‘To Harvey.’ The brakeman wanted 25 cents to carry the plaintiff, who replied that he had no money. Nothing further was said, and the brakeman walked away. The plaintiff, intending again to board the car, kept out of sight of the trainmen, including the brakeman, until the train started. He then attempted to board the car, and while the train was moving at the rate of some 15 miles an hour, and he was standing in the stirrup on the side of the car and hanging on to the grab iron, the brakeman, who was on the top of the cars, saw him, and started toward him, and in an angry manner, calling him a vile name, ordered him to jump off the car or he would kick his head off. The plaintiff was frightened by this threat, and fearing that it would be executed if the order was not obeyed, and induced thereby, dropped or jumped from the moving car to the ground, whereby he was seriously injured.
The evidence as to some of these facts was radically conflicting, especially as to the speed of the train at the time; the evidence on the part of the defendant tending to show that the speed did not exceed five miles an hour. Also, as to what the brakeman said to the plaintiff when he was discovered hanging to the side of the car, the brakeman's testimony was that when he saw the plaintiff he ‘hollered for him to keep off-to get off’; and, further, as to the brakeman's request for 25 cents for carrying the plaintiff, the brakeman testified that he never made any demand of the plaintiff for any money, and unqualifiedly denied the testimony of the plaintiff that such demand was made. There was also evidence on the part of the defendant tending to show that the plaintiff's testimony as to how he was injured was not true. The weight of the evidence and the credibility of the witnesses were questions for the jury.
Counsel for the plaintiff in his opening statement to the jury stated that: Plaintiff's counsel also, in discussing the admissibility of evidence as to what the brakeman said to plaintiff when he was first ordered off the car, said, in substance, that he would show that the brakeman was simply continuously sore from the time the plaintiff refused to pay the 25 cents, and claimed that the proposed evidence was admissible to enable the jury ‘to admeasure by proper standards and to find out, as a matter of ultimate fact, whether or not that brakeman was actuated by temper and spleen and malice at the time he ejected that boy; that he was continuously sore and in temper, and that was one of the inducing causes why he made this assault upon the boy as we claim in the complaint.’
The defendant claimed nothing at the trial on account of such statements, and took no action with reference to them, except to request the court to instruct the jury that if it were a fact that the brakeman demanded the 25 cents, which was refused, as plaintiff claimed, and the brakeman, incensed thereby, threatened to kick plaintiff off the car, they were joint trespassers, and the verdict must be for the defendant.
1. The first contention of the defendant is that ...
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