Elder v. Chicago, R. I. & P. Ry. Co., 24469.

• Decision Date: 19 June 1925
• Docket Number: No. 24469.,24469.
• Citation: Elder v. Chicago, R. I. & P. Ry. Co., 204 N.W. 557, 163 Minn. 457 (Minn. 1925)
• Court: Minnesota Supreme Court
• Parties: ELDER v. CHICAGO, R. I. & P. RY. CO.

204 N.W. 557

163 Minn. 457

ELDER v. CHICAGO, R. I. & P. RY. CO.

No. 24469.

Supreme Court of Minnesota.

June 19, 1925.

Appeal from District Court, Steele County; Fred W. Senn, Judge.

Action by Fred A. Elder against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

O'Brien, Horn & Stringer, of St. Paul, for appellant.

Leach & Leach, of Owatonna, and Davis, & Michel, of Minneapolis, for respondent.

DIBELL, J.

Action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover for personal injuries. There was a verdict for the plaintiff. The defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. Judgment was entered on the verdict. The defendant appeals from the judgment.

1. The plaintiff was injured in the accident considered in Schendel, administrator, against the same defendant (Minn.) 204 N. W. 552. He was the brakeman who set the brakes on the interstate cars in the side track at Pershing. That was the last work done on the cars brought from the mine on the day of the accident. The facts relative to the day's work are sufficiently stated in the Schendel Case. The facts characterizing the intestate there, and the plaintiff here, as employed in interstate commerce are different; but here as there the question was at least for the jury.

2. The action was brought on October 30, 1923. On January 5, 1924, the defendant instituted proceedings under the Compensation Act of Iowa (Code 1924, § 1361 et seq.) against the plaintiff to have determined his compensation. The plaintiff here, defendant in that proceeding, filed a plea in which he alleged the pendency of the action commenced in Minnesota and claimed a right under the federal Employers' Liability Act. On February 4, 1924, the plea was overruled. The deputy industrial commissioner on February 13, 1924, made an award to the plaintiff here of $15 per week during the period of total disability which was left undetermined, and this award was pleaded as a bar by supplemental answer. The action came on for hearing on March 1, 1924, and the verdict was returned on March 3, 1924. If the conclusion reached in the Schendel Case is correct the award is not a bar. The compensation proceeding went no farther than a finding by the deputy commissioner, which was the equivalent of a finding by the arbitration committee. In view of the Schendel Case we engage in no further discussion.

3. The defendant insists that the verdict, which was for $29,940, is excessive. Plaintiff was 38 years old. He earned from $240 to $250 per month. He was badly burned, some ribs were broken, he suffered a concussion of the brain,...