Fries v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 16 May 1924 |
| Docket Number | 23,919 |
| Citation | 198 N.W. 998,159 Minn. 328 |
| Parties | CHARLES F. FRIES v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Steele county by the special administrator of the estate of A. J. Hollenbeck, deceased, to recover $40,000 for the death of plaintiff's intestate. The case was tried before Childress, J., who at the close of the testimony denied defendant's motion for a directed verdict, and a jury which returned a verdict of $7,500 for earning ability and for $7,500 on account of pain and suffering. From an order, Senn, J., denying defendant's motion for judgment notwithstanding the verdict and denying a new trial if plaintiff consented to a reduction of the verdict for pain and suffering to $5,000, or a total of $12,500, defendant appealed. Affirmed on condition the award for pain and suffering be reduced to $1,500.
New trial not required because of any error in charge.
1. The charge relative to contributory negligence and assumption of risks as applied to interstate commerce was confusing, but it was finally stated correctly. It is held that there was no error requiring a new trial.
Award for pain and suffering excessive.
2. The plaintiff's intestate died within 4 or 5 hours after his injury. Opiates were administered within a half hour. The evidence does not show that there was substantial conscious pain afterwards. During the half hour he was intermittently conscious, and when conscious suffered severely. Held that an award of $7,500 for pain and suffering was excessive, and should be reduced conditionally to $1,500.
O'Brien Horn & Stringer, for appellant.
Tom Davis, Ernest Michel and Leach & Leach, for respondent.
Action to recover damages for the death of the plaintiff's intestate. The jury returned a verdict for $15,000, allowing $7,500 for the pecuniary loss accruing to the widow, the sole beneficiary, and $7,500 for the pain and suffering of the deceased. The defendant moved for judgment notwithstanding or a new trial. The court entered an order granting the motion for a new trial unless the plaintiff remitted $2,500 of the award of $7,500 for pain and suffering. The plaintiff remitted. The defendant appeals from the order.
1. The plaintiff's intestate was a pile driver engineer employed by the defendant in interstate commerce, working at the time of his injury near Watertown, South Dakota. The pile driver was being transported by a locomotive of the defendant from one place of work to another some miles distant. The deceased was in charge of his engine. The pile driver toppled over and he was killed by escaping steam. The defendant does not claim that the evidence was insufficient to warrant a finding of its negligence; nor does it claim that the question of contributory negligence and assumption of risks were questions of law to be resolved in its favor by the court. It claims that they were improperly submitted to the jury.
Contributory negligence was a partial defense. The doctrine of comparative negligence applied. Assumption of risk was a complete defense. There was confusion in the charge of the court presenting the law of the two defenses. There was a failure to distinguish clearly between the effect of the proof of one or of the other. There was an unnecessary reference to the Minnesota law, which was in no event applicable; but this was more likely to the prejudice of the plaintiff than of the defendant. The law applicable in interstate commerce was finally stated correctly. The defendant presented no requests to charge. It made no suggestion or objection or exception to the manner of the submission. The confusion in the presentation of the issues...
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