Clark v. Chicago & N. W. Ry. Co.
| Decision Date | 18 June 1948 |
| Docket Number | No. 34623.,34623. |
| Citation | 226 Minn. 375,33 N.W.2d 484 |
| Court | Minnesota Supreme Court |
| Parties | CLARK v. CHICAGO & N. W. RY. CO. |
Appeal from District Court, Hennepin County; Lars O. Rue, Judge.
Action under Federal Employers Liability Act, 45 U.S.C.A. §§ 51-60, by Buford Clark against Chicago & Northwestern Railway Company, to recover for injury sustained by plaintiff while in defendant's employ. From a judgment entered upon verdict for plaintiff, the defendant appeals.
Affirmed.
Alfred E. Rietz and George H. Henke, both of St. Paul (Lowell Hastings, of Chicago, Ill., of counsel), for appellant.
Eugene A. Rerat, of Minneapolis, for respondent.
Appeal from a judgment of the district court entered upon a verdict for plaintiff. The action arises under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51 to 60, inclusive. Defendant's motions for a directed verdict at the close of all the evidence and for judgment notwithstanding the verdict were both denied by the trial court. These denials were assigned as error, together with the court's refusal to give certain instructions. We have examined the requested instructions, and we consider that they pertain substantially to the assignments of error raised with reference to the refusal of the court to direct a verdict. No new trial was requested.
The only issue involved on this appeal is whether plaintiff has adduced sufficient evidence to sustain the verdict of the jury. On appeal from a judgment, where there has been no motion for a new trial but where there was a motion by appellant for a directed verdict, the only question presented is whether there is evidence to support the judgment. Where the only assignments of error were based on the refusal to direct a verdict and to grant judgment notwithstanding verdict, the only question reviewable is whether the evidence reasonably sustains the verdict. 1 Dunnell, Supp. § 388. This court has repeatedly held that on an appeal involving the sufficiency of the evidence to justify a verdict it is not necessary for this court to review and discuss the evidence to demonstrate the correctness of the verdict; that it is not the province of an appellate court to demonstate the correctness of a fact issue found by the trial court. Magnuson v. Burgess, 124 Minn. 374, 145 N.W. 32; Holmes v. Conter, 212 Minn. 394, 4 N.W.2d 106; Haglin v. Ashley, 212 Minn. 445, 4 N.W.2d 109; Cooper v. Hoeglund, 221 Minn. 446, 22 N. W.2d 450. We therefore give here a limited review of the fact situation.
It is undisputed that plaintiff was injured in the course of his employment as a brakeman for defendant. The complaint alleged that defendant, in violation of the Federal Employers' Liability Act, failed to provide and maintain for plaintiff a reasonably safe place to work, in the following respects: "* * * that defendant's said Capitol Drive Yard, at said time, was due to the negligence of the defendant, in a hazardous and unsafe condition; that the defendant negligently failed to provide adequate lights for said yard; that defendant negligently failed to make a timely and adequate inspection of said yard, and negligently failed to give the plaintiff timely and adequate notice and warning of the dangerous and hazardous condition of said yard, and of the presence of the foreign object in said yard at said time; that the defendant negligently and in violation of law, permitted the space between its tracks and in and around its tracks, switches and yards, ordinarily used by its employees in the discharge of their duties, to become and remain obstructed by foreign objects which interfered in the work of defendant's employees, including the plaintiff, and subjected defendant's employees and the plaintiff to unnecessary peril and hazard."
The trial court withdrew from the consideration of the jury all claims of negligence except that which alleged in substance that plaintiff tripped over a piece of board or block which defendant negligently permitted to remain in the yard and which defendant knew or should have known was there. In instructing the jury as to what facts would have to be found in order to hold defendant liable, the court said in part:
No exceptions were taken to the above instruction by either party, so it became the law of the case. Defendant now raises no question as to the extent of the damages. The only question here for review, therefore, is whether the evidence is sufficient to warrant the verdict for plaintiff under the instructions given by the trial court.
The testimony as to whether plaintiff tripped over the block, as alleged, is completely contradictory. The evidence establishes without dispute that on January 16, 1946, plaintiff, an employe of defendant, was working as a member of a five-man switching crew in the Capital Drive Yard in Milwaukee, Wisconsin. He had worked for defendant about eight days, but it was the first time he had worked with this particular crew and in this particular yard. As plaintiff was walking toward a railroad switch which he had been directed to throw, along the customary path used by switchmen to approach that switch, he fell and injured his left knee and leg. He had reported for work at about 8 o'clock the night of the accident, which occurred about 10:30 p.m. The night was dark and clear. There was no artificial light at the place of the accident other than that provided by the lantern plaintiff carried. Plaintiff testified that he tripped or fell on "a piece of plank about four inches high and about 10 or 12 inches long," left in the path as he approached the switch, and he claimed that the presence of this block was the cause of his fall and the resulting injury.
Two other members of the switching crew, George E. Wahl, conductor, and Arthur H. Gerbitz, a brakeman, went to his assistance. Both were long-time railroad men and had been in the employ of defendant for many years. They both testified that they looked about the premises at the scene of the accident while plaintiff was still there and that there was no board or block there that they could find or see. These two crew members also testified that plaintiff did not inform them that he had tripped over a board. Plaintiff claimed that he did tell them about the block, and when asked if he showed it to them testified that The evidence shows that blocks of wood, generally about two inches thick and 12 inches long, were customarily used by the employes in that yard for blocking car wheels, although the blocks were not furnished by the company. The evidence is not clear as to whether blocks were customarily used at the particular place where the injury occurred. Conductor Wahl said that the blocks were used on the team track and other various tracks. Brakeman Gerbitz testified there was no need for these blocks in the vicinity of that switch, because cars were not stopped and blocked in that vicinity for if they were they would foul the switch point. He said, however, that as far as he remembered it had been the practice during the 20 years he had been with the company to use the blocks where a car was to remain a short time, and he testified that "along most any tracks where you work you will find them [the blocks] along the tracks." Both of these witnesses testified that the yard sloped toward the north.
A statement signed by plaintiff while confined in the hospital was introduced in evidence in which he said: "I don't know what the object was I stepped on." He claims that this language was the claim agent's version, although the line referred to was written in longhand by plaintiff. He said that he told the claim agent, "I stepped on a foreign object, yes; I did at that time, that's what I called it."
The gist of defendant's argument for reversal is in the contention that the alleged presence in the pathway of the block over which plaintiff claims to have tripped depends upon the uncorroborated testimony of plaintiff and is contradicted by two of defendant's witnesses. It further contends that, even assuming that there was enough evidence for the jury to find that there was such a board in the pathway, that fact alone was not sufficient to charge defendant with negligence even in conjunction with the fact that similar boards were placed alongside the tracks in the yard for the use of its employes. Defendant further argues that there is nothing in the record as to how long the board had been in the pathway, and it contends that there is no evidence to permit the jury to find that defendant, in the exercise of ordinary care, should have ascertained the presence of the board and taken steps to remove it or warn plaintiff of its presence. Lacking such evidence, it insists that the case should never have been submitted to the jury. It also contends that because of the statement plaintiff signed as submitted by the claim agent his testimony at the trial is not entitled to credence.
Plaintiff claims that there was reasonable evidence to submit to the jury and that the fact questions involved were determined by the jury in his favor. He argues that the credibility of the witnesses was for the jury, and that the jury was entitled to disbelieve and disregard the testimony of defendant's witnesses and could take into account that ...
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