Craver v. Christian

• Citation: 34 Minn. 397,26 N.W. 8
• Parties: CRAVER v CHRISTIAN AND OTHERS, COPARTNERS, ETC.
• Decision Date: 24 December 1885
• Court: Supreme Court of Minnesota (US)

34 Minn. 397

26 N.W. 8

CRAVERvCHRISTIAN AND OTHERS, COPARTNERS, ETC.

Supreme Court of Minnesota.

Filed December 24, 1885.

Appeal from an order of the district court, Hennepin county.

Edwin Stone, for appellant, Charles P. Craver.

Babcock & Davis, for respondents, J. A. Christian and others, copartners, etc.

BERRY, J.

Our statute (Gen. St. 1878, c. 66, § 262) enacts that an “action may be dismissed, without a final determination of its merits, *** by the court, when, upon the trial, and before the final submission of the case, *** the plaintiff fails to substantiate or establish his claim or cause of action or right to recover;” and the following section (263) adds that “in every case other than those mentioned in the last section the judgment shall be rendered on the merits.”

That, to be pleadable in bar, a former adjudication must be a final determination of the merits of the action, is elementary. State v. Torinus, 28 Minn. 175;S. C. 9 N. W. Rep. 725. The statutory provisions above quoted expressly show that the dismissal therein provided for is not a final determination of the merits of the action, but, in effect, nothing more than a common-law nonsuit. See Boom v. St. Paul F. & M. Co., 22 N. W. Rep. 538. This is so, even if judgment is entered upon the order as provided in section 263, and as is not alleged to have been done in the defendant's answer in this case. See Gummer v. Trustees, 50 Wis. 247;S. C. 6 N. W. Rep. 885.

This action, being on trial before a jury, was dismissed by the court at the close of plaintiff's testimony, upon the ground that no cause of action was proven. The question now before us is whether the state of the evidence was such as to justify the court in taking the case from the jury. In view of the fact that the case will go back for a new trial, we shall not enter into detail further than is absolutely necessary to indicate briefly, and in a general way, our reasons for concluding that this question must be answered in the negative. To make a case for the jury in this action the plaintiff must adduce evidence reasonably tending to show negligence on defendants' part, and he must not show contributory negligence on his own part. We think that there was evidence introduced reasonably tending to show that defendants were chargeable with negligence in leaving the gearing uncovered so as unnecessarily to endanger the safety of their employes. And in view of the fact that when the plaintiff first went into defendants' employ, about the middle of July, and up to the latter part of August, when the mill was shut down, all the gearings...