Bragg v. Chi., M. & St. P. Ry. Co.

• Decision Date: 06 August 1900
• Court: Minnesota Supreme Court
• Parties: BRAGG v. CHICAGO, M. & ST. P. RY. CO.

81 Minn. 130

83 N.W. 511

BRAGG

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

Aug. 6, 1900.

Appeal from district court, Ramsey county; Charles E. Otis, Judge.

Action by Wallace F. Bragg against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment ordered for defendant notwithstanding verdict, plaintiff appeals. Reversed.

Syllabus by the Court

1. Chapter 320, Gen. Laws 1895, does not authorize an order for judgment notwithstanding the verdict when there is evidence reasonably tending to support such verdict.

2. Evidence considered, and held, that the trial court was not justified in ordering judgment in favor of the defendant of notwithstanding the verdict rendered in favor of the plaintiff.

3. The defendant, having moved for judgment without having, in addition thereto, asked for a new trial in the alternative, waived the right to do so.

Oscar Hallam, for appellant.

F. W. Root, for respondent.

LOVELY, J.

This appeal is from a judgment ordered for defendant notwithstanding a verdict in favor of plaintiff, under chapter 320, Gen. Laws 1895. Plaintiff recovered damages for injuries sustained while in the act of alighting from a passenger car at Western avenue, in the city of St. Paul, by the alleged negligent starting of the train while he was stepping from the same. The conceded facts show that defendant and the Chicago, St. Paul, Minneapolis & Omaha Company operated their lines over the same tracks from St. Paul to Mendota; also, that on the afternoon of the day of the injury there was a difference of but a few minutes in the leaving time for St. Paul, at Mendota, of the passenger trains of both companies. From the latter fact the confusion has undoubtedly arisen which led to the manifest error of the trial court in ordering the judgment appealed from. No particular prominence at the trial was given to the claim that the plaintiff was not upon one of defendant's trains. Other questions which were hotly contested were apparently considered of more importance. A careful perusal of the evidence shows that defendant's counsel made no suggestion during the trial that there was a mistake as to the identity of the train on which plaintiff was a passenger, nor was the plaintiff, or the other witness who claimed to be with him at the time of the alleged injury, asked ‘whether he knew that he was on a train of defendant's road, or might be mistaken as to that fact, or whether he was not upon a train of the other company,’ and in the charge of the learned trial court no particular stress was placed upon this phase of the case; but, after verdict and critical examination of the record by counsel for defendant, it was insisted, on motion for judgment before the court below, that there was no evidence in the case that plaintiff was on defendant's train, and it was argued here that the testimony upon this contention was as strong in its probative force to show that plaintiff received his injuries from the Omaha Company as from the defendant's servants, in the alleged untimely starting of their train. In the memorandum of the learned trial court, filed upon the order directing judgment for defendant, the following statement of the evidence upon this issue very correctly summarizes the same: ‘Plaintiff says that he went to Mendota in the afternoon on a line of railway of defendant from St. Paul, through Mendota, southerly, and it is perhaps inferable that he went on one of defendant's trains. He says that he came back on the same day, leaving Mendota about 6 o'clock p. m. on the regular train. Another witness testifies that plaintiff left ‘after 6 o'clock,-some time around 6 o'clock.’' It is conceded by counsel for defendant that the above is an accurate statement of the evidence. In addition the trial court further adds: ‘This testimony, standing alone, raises a presumption that plaintiff returned on defendant's 6:05 p. m. regular train; such presumption being a matter of inference only, and not resting on any direct testimony as to the ultimate fact.’ It seems obvious that the trial court misapprehended the effect of this evidence. The statement of plaintiff that he went to Mendota on defendant's line admits of no misconception; and that he returned on the regular...