Creteau v. Chicago & Northwestern Railway Company

• Decision Date: 10 February 1911
• Docket Number: 16,862 - (227)
• Citation: 129 N.W. 855,113 Minn. 418
• Parties: IRVING CRETEAU v. CHICAGO & NORTHWESTERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

129 N.W. 855

113 Minn. 418

IRVING CRETEAU v. CHICAGO & NORTHWESTERN RAILWAY COMPANY

Nos. 16,862 - (227)

Supreme Court of Minnesota

February 10, 1911

Action in the district court for Ramsey county, based upon the Wisconsin act of 1907, c. 254, to recover $25,000 for personal injuries sustained while employed as a mechanic in defendant's shop at Milwaukee. The defenses set up in the answer are stated in the opinion. The reply was a general denial. The case was tried before Orr, J., who, at the close of the trial, denied defendant's motion for a directed verdict upon the grounds, among others, that the Wisconsin statute was unconstitutional and had been superseded by the federal statute, 35 St. 65, c. 149, and submitted the case to the jury under the federal employer's liability act. The jury returned a verdict in favor of plaintiff for $12,500. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Reversed and new trial granted.

SYLLABUS

Liability under federal or Wisconsin statute -- charge to jury.

An action for personal injuries, predicated wholly and entirely upon the statutes of the state of Wisconsin abolishing the fellow servant doctrine as respects railroad employment, and tried throughout upon the theory of liability thereunder held erroneously submitted to the jury upon the question whether defendant was liable under the federal employer's liability act.

Brown Abbott & Somsen, for appellant.

Barton & Kay, for respondent.

OPINION

BROWN, J.

Action to recover for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had a verdict, and defendant appealed from an order denying its motion for judgment notwithstanding the verdict or a new trial.

Plaintiff was in the employ of defendant in the capacity of machinist at the city of Milwaukee, in the state of Wisconsin. He there received the injury to recover compensation for which this action was brought. The action, by the allegations of the complaint, was predicated upon chapter 254, Laws Wis. 1907, and that statute was pleaded and therein set out in full. That statute in substance abolishes the fellow servant doctrine, as respects railroad employment, but provides that it shall not apply to "employees working in shops or offices." The defense was (1) that plaintiff was a shop employee, and therefore not within the provisions of the statute; and (2) that his injury was occasioned by his own contributory negligence, and that he assumed the risks. The issues thus presented were litigated on the trial. Plaintiff offered in evidence the Wisconsin statute, and evidence tending to support and establish the other allegations of the complaint, and defendant offered evidence in support of its defense.

At the conclusion of the trial defendant moved for a directed verdict upon several grounds, among others, that the statute of Wisconsin, made the basis of the action, was unconstitutional and void, and had been superseded by the act of congress known as the "Federal Employer's Liability Act." [35 St. 65, c. 149.] The motion was discussed by counsel at length, and the trial court ruled, in harmony with defendant's contention, that the Wisconsin statute, having been enacted prior to the act of congress, was superseded by the latter, and consequently that plaintiff could not recover under that statute. The court further ruled, however, that the case should go to the jury upon the question whether defendant was liable, on the facts disclosed, under the act of congress. The case was sent to the jury accordingly, and a verdict returned for plaintiff. Defendant duly excepted. This ruling is assigned as error and presents the controlling question on this appeal.

1. It is clear that the learned trial court erred in disposing of the case in the manner stated. Counsel for plaintiff does not seriously contend to the contrary. The action, by the allegations of the complaint, was founded entirely upon the Wisconsin statute, and the trial proceeded...