Cunningham v. Great N. Ry. Co., 6889.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: CHRISTIANSON
• Citation: 14 N.W.2d 753,73 N.D. 315
• Parties: CUNNINGHAM v. GREAT NORTHERN RY. CO.
• Docket Number: No. 6889.,6889.
• Decision Date: 27 May 1944

73 N.D. 315
14 N.W.2d 753

CUNNINGHAM
v.
GREAT NORTHERN RY. CO.

No. 6889.

Supreme Court of North Dakota.

May 27, 1944.

Appeal from District Court, Ramsey County; Kneeshaw, Judge.

Action for death under the Federal Employers' Liability Act, 45 U.S.C.A. § 51-59, by Helena E. Cunningham, administratrix of the estate of William Burton Cunningham, against the Great Northern Railway Company. The jury returned a verdict for plaintiff, the defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial, the trial court denied the motion for judgment notwithstanding the verdict but ordered a new trial and both parties appeal.

Reversed and remanded with directions to dismiss the action.

[14 N.W.2d 754]

Syllabus by the Court.

1. Where the party against whom verdict has been rendered makes timely motion in the alternative for judgment notwithstanding a verdict or for a new trial, and it appears from the record that the evidence does not sustain the verdict and that the moving party was entitled to a verdict, that there is no reasonable probability that the defects in the proofs may be remedied upon another trial and that on the record as a whole the moving party is entitled to verdict and judgment as a matter of law, it is error for the trial court to deny a motion for judgment notwithstanding the verdict and order a new trial. Laws 1935, ch. 245.

2. In actions under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, FCA, wherever brought, the rights and obligations of the parties depend upon such Act and applicable principles of common law as interpreted and applied in the Federal Courts.

3. Negligence of the employer is the basis of recovery under the Federal Employers' Liability Act. Without negligence there is no right of action.

4. In actions under the Federal Employers' Act, as in other actions at law for injury to employees, the burden is cast upon the plaintiff to show negligent conduct on the part of the employer constituting ground for recovery. The plaintiff must establish a breach of duty on the part of the defendant and show that such misconduct was in fact the proximate cause of his injury.

5. The question of negligence is generally one of fact for the jury, it becomes a question of law only when the evidence is such that fair-minded men cannot reasonably draw different conclusions as to the facts or the inferences to be drawn therefrom. But when the state of the evidence is such that fair-minded men in the exercise of reason and judgment could not have reached the conclusion that the person whom the jury by its verdict found to have been negligent in fact had been negligent, then the verdict will be set aside.

6. In the instant case it is held, for reasons stated in the opinion, that there is no evidence from which the inference may reasonably be drawn that the defendant was negligent, and that the injuries sustained by plaintiff's intestate were caused by any breach of duty of the defendant; and that upon the record as a whole the defendant is entitled to judgment as a matter of law.

Sinness & Duffy, of Devils Lake, for plaintiff.

[14 N.W.2d 755]

Murphy, Toner & Kilgore, of Grand Forks, for defendant.

CHRISTIANSON, Judge.

The plaintiff, Helena E. Cunningham, is the widow of William Burton Cunningham, and the administratrix of his estate. On October 6, 1941 said Cunningham was, and for more than twenty years prior thereto, had been, employed by the defendant railway company as a telegram lineman. His work consisted principally of repairing telegraph lines along the main line between Devils Lake and Rugby, North Dakota, and along the branch lines connecting with and running north from said main line. For the purposes of travel incident to such work Cunningham was furnished with a motor car, commonly known as a speeder.

On October 6, 1941 he made a trip to Leeds (a station between Devils Lake and Rugby) in the performance of his work as telegraph lineman. In making the trip he used the speeder. On returning to Devils Lake, at a point one and 85/100 miles west of the Devils Lake depot, Great Northern Train No. 4, an east bound passenger train, ran into and collided with the speeder on which Cunningham was riding, and caused his death. The plaintiff, as administratrix of the estate of her deceased husband, brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, 10A FCA, claiming that her husband's death occurred in the course of his employment, and was due to the negligence of the defendant.

The charge of negligence is predicated upon three grounds: 1. That the train was operated at an excessive speed; 2. That the train was being run ahead of schedule time; and, 3. That the defendant had knowledge that the decedent, Cunningham, was on the track and took no proper precaution to prevent his being injured.

The defendant denied that it was negligent in any manner and alleged that the injury and death were the result of lack of care on the part of the decedent.

The case was tried to a jury and resulted in a verdict in favor of the plaintiff. The defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion for judgment notwithstanding the verdict, but ordered a new trial. Both parties have appealed. The plaintiff claims that it was error to set aside the verdict and order a new trial; and the defendant claims that the trial court erred in denying its motion for judgment notwithstanding the verdict.

The several assignments of error, and the arguments presented in support thereof, resolve to this: Is the evidence sufficient to sustain the verdict, or is the defendant entitled to a verdict and judgment as a matter of law?

In a memorandum decision denying the motion for judgment notwithstanding the verdict and ordering a new trial, the trial court said: “As the case now stands *** the defendant is entitled to an order for judgment notwithstanding the verdict”, but “there is a possibility on a new trial the plaintiff may be able to furnish the necessary evidence that at the time of the collision the train was running ahead of time and that such negligence was the proximate cause of the collision and injury *** and the complaint can then be amended, specifically charging negligence on such ground.”

There is a strong presumption in favor of an order granting a new trial on the ground of insufficiency of the evidence to support the verdict, and the order will not be disturbed in absence of clear showing that it is erroneous. Aylmer v. Adams, 30 N.D. 514, 520, 153 N.W. 419, 420;Kohlman v. Hyland, 56 N.D. 772, 777-779, 219 N.W. 228. Judgment notwithstanding the verdict will not be ordered because the evidence is insufficient to sustain the verdict even though the state of the evidence is such that the trial court ought to have directed a verdict or ordered a new trial on the ground of insufficiency of the evidence to sustain the verdict. In order to warrant ordering judgment notwithstanding the verdict for insufficiency of the evidence to sustain the verdict, it must further appear “that there is no reasonable probability that the defects in, or objections to, the proof, necessary to support the verdict, may be remedied upon another trial.” First State Bank v. Kelly, 30 N.D. 84, 152 N.W. 125, 130, Ann.Cas.1917D, 1044.

But where the evidence is insufficient to sustain the verdict, and it also clearly appears that there is no reasonable probability that the defects in or objections to the proof necessary to support the verdict may be remedied upon another trial, and that upon the whole record the party against whom the verdict was rendered is

[14 N.W.2d 756]

entitled to judgment upon the merits as a matter of law, the trial court, upon the motion of the party against whom the verdict was rendered for judgment notwithstanding the verdict, or in the alternative for such judgment or for a new trial, should order judgment notwithstanding the verdict; and failure to so do constitutes error subject to review and correction on appeal. Section 7643, Supplement to the Compiled Laws of 1913; Laws 1935, Ch. 245; Welch Mfg. Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849.

The great question presented for determination by the trial court in this case was whether the injury which caused the death of Cunningham was occasioned by the negligence of the defendant. The plaintiff had the burden of proving that it was.

For “in actions under the Federal Employers' Liability Act, as in other actions at law for injuries to employees, the burden is cast upon the plaintiff to show negligent conduct on the part of the employer constituting ground for recovery. The plaintiff must establish a breach of duty on the part of the defendant, and show that the misconduct was a foreseeable cause of the plaintiff's injury and that it was in fact the proximate cause of his injury.” 35 Am.Jur., p. 944.

Does the evidence which was adduced upon the trial show a state of facts from which reasonable and fair-minded men in the exercise of reason and judgment could find that the injury which caused the death of Cunningham was occasioned by the negligence of the defendant? That is the question which the parties have presented for determination in this court.

Both parties assail the order for a new trial. There is no claim by either party that there is any likelihood that any substantial additional evidence can be adduced upon another trial. The claim is to the contrary.

In plaintiff's brief on this appeal it is said: “The evidence insofar as the plaintiff is concerned is substantially in documentary form. There is no reason to suppose that it can be changed upon a new trial. Under that evidence the jury was or was not justified in finding the defendant negligent. If it was, then the plaintiff ought not to be forced to go to the expense of a new trial and the judgment ought to be affirmed. If that evidence is not sufficient,...