Evans v. Chi., M. & St. P. Ry. Co.

• Decision Date: 16 June 1916
• Docket Number: No. 19841[205].,19841[205].
• Parties: EVANS v. CHICAGO, M. & ST. P. RY. CO. et al.
• Court: Minnesota Supreme Court

133 Minn. 293

158 N.W. 335

EVANS

v.CHICAGO, M. & ST. P. RY. CO. et al.

No. 19841[205].

Supreme Court of Minnesota.

June 16, 1916.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

Action by David T. Evans against the Chicago, Milwaukee & St. Paul Railway Company and others. From an order denying a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

In an action by a passenger against a carrier for personal injuries it is error to receive evidence that he carried accident insurance and realized thereon for his injuries to diminish or defeat a recovery.

When such evidence is stricken by the court on its own motion and the jury directed to disregard it the error is ordinarily cured, the presumption being that prejudice did not result; but when it appears that prejudice resulted the error is not cured and a new trial should be granted; and in this case it is held that prejudice resulted.

The court correctly refused to receive in evidence the amputated hand of the plaintiff. Mead & Bryngelson and A. D. Evans, all of Minneapolis, for appellant.

F. W. Root and Nelson J. Wilcox, both of Minneapolis, for respondents.

DIBELL, C.

Action for personal injuries. Verdict for the defendant. Appeal by the plaintiff from an order denying his motion for a new trial.

1. The plaintiff was a passenger on a night train of the defendant from Minneapolis to Owatonna. He claims that as he was on the platform passing from the smoker to another coach just as the train was leaving Minnehaha Falls he slipped and fell down the steps and in trying to save himself was thrown under the coach. His hand was crushed. Afterwards it was amputated at the wrist. The evidence was such as to sustain a verdict in his favor.

On the cross-examination of the plaintiff the defendant was permitted to show, over his objection, that he had received $5,000 on policies of accident insurance covering his injury. The purpose was to reduce or defeat his recovery upon the theory that the larger the amount he received from insurance the less was the loss for which he could recover of the defendant. The receipt by one injured through the negligence of another of the proceeds of accident policies does not defeat or diminish his recovery of the tort-feasor. The principle is illustrated where death results from an injury, the deceased having a life policy, and where property is damaged, the owner having a fire policy. The holdings are not uncertain and the cases are of ample number. See 15 Cent. Dig. Damages, § 113; 7 Dec. Dig. Damages, § 64; 15 Cent. Dig. Death, § 101; 7 Dec. Dig. Death, § 91; 3 Sedgwick on Damages (9th Ed.) § 860; 1 Sutherland on Damages (3d Ed.) § 158; 3 Hutchinson on Carriers (3d Ed.) § 1423, 8 Am. & Eng. Enc. Law, 690; 13 Cyc. 70. The court was in error in receiving the testimony.

[2] 2. After the plaintiff had rested and the defendant had opened to the jury, the court, deeming the testimony erroneously admitted, of its own motion struck it out and directed the jury to disregard it. Ordinarily such action of the court cures the error, the presumption being that prejudice did not result. Hillestad v. Hostetter, 46 Minn. 393, 49 N. W. 192;Town of Wells v. Sullivan, 125 Minn. 353, 147 N. W. 244; 2 Dunnell, Minn. Dig. §§ 7206, 7207. But if the testimony is of a character naturally affecting the feelings or sympathies or bias of the jury and it appears that prejudice resulted the error is not cured. State v. Yates, 99 Minn. 461, 109 N. W. 1070;Strasser v. Stabeck, 112 Minn. 90, 127 N. W. 384; Salo v. Duluth, etc., R. Co., 121 Minn. 78, 140 N. W....