Deisen, Administrator v. Chicago, St. Paul, Minneapolis & Omaha Railway Company
| Decision Date | 11 June 1890 |
| Citation | 45 N.W. 864,43 Minn. 454 |
| Parties | T. A. Deisen, Administrator, v. Chicago, St. Paul, Minneapolis & Omaha Railway Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Jackson county, Perkins, J., presiding, refusing a new trial after verdict of $ 3,500 for plaintiff.
Order affirmed.
J. H Howe, S. L. Perrin, and Daniel Rohrer, for appellant.
T. J Knox and L. F. Lammers, for respondent.
This was an action under the statute, to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of the defendant. The principal question is whether the verdict was justified by the evidence. As our conclusion, after an examination of the entire record, is that we would not be justified in reversing the order of the district judge refusing a new trial, we shall not attempt to state or discuss the evidence at any length, but content ourselves with referring to a few of the salient features of the case. On the day the deceased was killed he was engaged in unloading coal into a coal-house out of a flat-car which had been run by defendant on one of its side tracks opposite a coal-house, for the express purpose of enabling the owner of the coal to unload it. Defendant's station agent knew that the deceased was engaged in that work. There were on the same side track, and east of the coal-car, several box-cars notably one large one attached to the flat-car, which would prevent a person on the coal-car from seeing cars approaching from that direction. In this condition of things, an engine from a freight train was run in from the main track upon this side track, and from the east, for the purpose of getting out some empty box-cars. It struck and set in motion the cars east of the coal-car, which in turn struck and set in motion the coal-car, the wheels of which ran over and killed the deceased. From the position of the body, it is evident that, at the precise moment when the wheels ran over him, the deceased was lying on his back across and at right angles with the rail next the coal-house, his head lying between the rails, and his feet outside and towards the coal-house, his back immediately above the hips resting on the rail, which was some four inches above the ties on either side. That his arms were down by his sides, and his hands also on the rail, is evident from the fact that they were cut off or mangled by the car-wheels. There was evidence tending to show, and which would have justified the jury in finding, that the cars which set the coal-car in motion were driven down against it with very considerable violence, and without any signal or warning to the deceased. In view of all these facts, it can hardly be doubted that the jury were justified in finding that this was negligence on the part of the agents and servants of the railway company. That this negligence was the proximate cause of the death of the deceased cannot be doubted. Plaintiff's contention is that the evidence tends to show that the deceased, while in the line of his work, was thrown by the violent concussion from the coal-car against the coal-house, and then fell or was thrown backward across the rail, and under the moving car. If this was so, unquestionably the verdict is right. But, on the other hand, the defendant claims that the evidence shows that the deceased must have gotten off the car, and lain down under it, on the track, and probably gone to sleep. If the evidence proves this, unquestionably the deceased was himself guilty of negligence, and no recovery could be had, as the court expressly instructed the jury. And this is really the pivotal point in the case.
As no one saw the accident, the proof of the exact manner of its occurrence, or just what the deceased was doing at that precise time, consists entirely of circumstantial evidence. The circumstances bearing more or less on the question are too numerous to be repeated. Defendant relies as corroborating his theory, mainly upon the position and attitude of the body, together with the fact that an old boot which deceased wore on one foot...
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