Capital Trust Company v. Great Northern Railway Company
| Decision Date | 09 October 1914 |
| Docket Number | 18,776 - (250) |
| Parties | CAPITAL TRUST COMPANY v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by the administrator of the estate of William M. Ward, deceased, to recover $35,000 for the death of its intestate. The case was tried before Olin B. Lewis, J., and a jury which returned a verdict for $4,462.50 in favor of plaintiff. From an order denying its motion for judgment in its favor notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Witness -- conflicting testimony -- setting aside verdict.
1. The testimony of a witness which concededly made defendant's negligence a question for the jury, in this a personal injury action, was not so discredited by prior written statements and reports, or by his cross-examination, that a verdict based thereon, and approved by the trial court, should not stand. The jury have a right to consider the circumstances under which such statements are made.
Survival of cause of action.
2. When a person lives an appreciable length of time after receiving an injury through a defendant's negligence, even though in a state of unconsciousness, his cause of action survives under section 9 of the Federal Employer's Liability Act. Testimony that plaintiff's intestate, after the injury moaned and breathed for ten minutes justified the court in submitting the question of the survival of his cause of action to the jury.
Damages not excessive.
3. The damages recovered held not excessive since the jury might have found that his death was not instantaneous.
M. L Countryman and A. L. Janes, for appellant.
Samuel A. Anderson and A. F. Storey, for respondent.
While working for defendant, a carrier of interstate commerce, William M. Ward, a switchman, was killed. The administrator of his estate brought this action under the Federal Employer's Liability Act to recover damages, the claim being that Ward's injuries and death resulted from defendant's negligence. Plaintiff received a verdict, and defendant appeals from the order denying its alternative motion for judgment or a new trial.
Appellant claims that the testimony establishing its negligence is so discredited that a verdict based thereon should not be permitted to stand; that the proof of instantaneous death was conclusive, and hence the court erred in submitting the question of the survival of Ward's cause of action to the jury which, if found true, permitted the damages to be measured by the loss of Ward's earning capacity and not by the pecuniary loss to his beneficiaries; and that the damages are excessive.
The circumstances attending the fatality are in brief these: Ward, an experienced switchman, was engaged, under a foreman, one Rogers, and crew, in distributing a string of 14 cars, in an extensive switchyard in Minneapolis. The cars were to be "kicked" from the lead track and switched onto the proper yard tracks. In the operation the locomotive was in the rear pushing the cars west, and it was necessary to speed up sufficiently so that, when a car from the forward end was uncoupled, the momentum would be sufficient to carry it beyond the intended switch to its destination, the remaining cars would be stopped before reaching the switch, or else the switch would be set against them. If the car, or cars, to be "kicked" were loaded, it was the duty of one of the switchmen to get to the brakes so as to stop at the right place. Rogers was on the ground directing, through signals, the movements of the train and, to some extent, the work of the crew. One man, called the pin puller, uncoupled the car or cars to be "kicked" at the proper time and place, and another attended the switch. As stated the cars were being pushed west in obedience to Rogers' signal to "kick" the forward car, an empty box car. At the time, Ward was observed standing on the running board at the middle of the next box car (one witness states it might have been on the third from the first), looking toward Rogers. A few seconds thereafter he was seen falling over the forward end of the second car, the first car, just prior to that moment having been uncoupled, had moved away several feet from the balance of the cars which were being slowed down, or abruptly checked, as claimed by plaintiff. He was run over and died, if not immediately, within ten minutes.
The negligence claimed was high speed, and the giving of the slow-down signal by Rogers so quickly after the uncoupling that Ward, who understood his duty to be to get onto the uncoupled car and ride it to its destination, did not have time to reach it from where he was standing before the cars parted; also that when Rogers had given the cut-off signal he signalled the engineer for a quick check of speed, so that the car on which Ward was walking, or standing, was stopped so abruptly and violently as to throw Ward over the end. Counsel for defendant frankly concedes that a case for the jury upon defendant's negligence is made by the testimony of Holden, the switchman who was standing on the ground near Rogers, and who, upon observing the signals and the probability that Ward would not be able to get on the "kicked" car, rushed forward and boarded it in such hurry as almost to trip the pin puller. But it is said, Holden's story is so discredited by his written statements of the occurrence made soon thereafter to defendant and its claim agent, and by his cross-examination, that the verdict should not be permitted to stand. No witness observed Ward the few moments elapsing between the time the car was uncoupled and when he was seen pitching over the end of the car on which he had been riding. Defendant contends that since the switchman, McDonough, testified that he told Ward that the car then "kicked" was an empty and that the foreman had instructed the crew that empties "kicked" need not be...
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