Bosch v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 10 December 1915
• Docket Number: 19,454 - (117)
• Citation: Bosch v. Chicago, Milwaukee & St. Paul Railway Company, 155 N.W. 202, 131 Minn. 313 (Minn. 1915)
• Parties: JOHN BOSCH v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Minnesota Supreme Court

155 N.W. 202

131 Minn. 313

JOHN BOSCH v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Nos. 19,454 - (117)

Supreme Court of Minnesota

December 10, 1915

Action in the district court for Wabasha county to recover $25,000 for injury received while alighting from one of defendant's passenger trains. The case was tried before Snow, J., and a jury which returned a verdict for $3,500. Defendant's motion for judgment notwithstanding the verdict was denied. From the judgment entered pursuant to the order for judgment, defendant appealed. Affirmed.

SYLLABUS

Judgment notwithstanding verdict.

1. Judgment notwithstanding the verdict will be granted only when the evidence is conclusive against the verdict. In the present case it does not appear conclusively that the injury did not result from negligence in respect to the lighting of the platform upon which defendant company discharged its passengers.

Judgment notwithstanding verdict -- negligence of servant.

2. Whether judgment notwithstanding the verdict may be granted in favor of the master, where a suit, based upon negligence of a servant and brought against both master and servant results in a verdict in favor of the servant and against the master -- there being evidence tending both to prove and to disprove the charge of negligence -- is doubted but not decided.

F. W Root, Nelson J. Wilcox and John W. Murdock, for appellant.

Larrabee & Davies, for respondent.

OPINION

TAYLOR, C.

Plaintiff, a passenger upon one of defendant company's passenger trains, was injured while attempting to alight from the train at his destination, the station of Lake City. He brought suit for damages against both the company and the conductor of the train and recovered a verdict. The trial court granted a new trial. At the second trial, he recovered a verdict against the company but not against the conductor. The company made a motion for judgment notwithstanding the verdict. This motion was denied; judgment was entered upon the verdict, and the company appealed therefrom.

The company does not ask for a new trial, but for judgment notwithstanding the verdict. Consequently the only question for consideration is whether the record shows conclusively that plaintiff is not entitled to recover. Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N.W. 419, L.R.A. 1915D, 1077.

The facts briefly stated are as follows: Defendant has two main line tracks at Lake City running easterly and westerly. The north track is used for west bound trains, and the south track for east bound trains. On the north side of the north track is the depot; on the south side of the south track is a shelter-shed, with a canopy projecting 38 feet therefrom toward the west, and a low concrete platform extending from the shelter-shed toward the west for a considerable distance. On the night in question there was no light in the shelter-shed; there was one 40 candle power incandescent light under the canopy; another 17 feet west of the canopy; another 75 feet further west, and another 75 feet still further west, but this last light was not lighted. Appellant discharges passengers from east bound trains upon this platform at the south side of the track.

Plaintiff took passage upon an electric-lighted full vestibuled east bound passenger train which arrived at Lake City about nine o'clock on the evening of December 6, 1913. He occupied a seat in the smoking-car. As the train slowed down for the stop, the conductor opened the south vestibule upon the rear platform of the smoking-car and stood at the steps, and a brakeman opened the south vestibule upon the adjoining platform of the next car toward the rear, and stood at the south steps upon that car. Plaintiff came out upon the rear platform of the smoking-car ready to alight. A moment later a porter with a telegram in his hand opened the north vestibule of the rear car, alighted and started toward the depot. The conductor at once moved over to the vestibule opened by the porter to prevent passengers from alighting upon the track for west bound trains, leaving the south steps upon the smoker unguarded. Pla...