Garedpy v. Chicago, M., St. P. & P. R. Co.
| Decision Date | 01 February 1929 |
| Docket Number | No. 26950.,26950. |
| Court | Minnesota Supreme Court |
| Parties | GAREDPY v. CHICAGO, M., ST. P. & P. R. CO. |
Appeal from District Court, Dakota County; W. A. Schultz, Judge.
Action by Wilfred Garedpy, a minor, appearing by L. Meisenhelder, his guardian ad litem, against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Verdict for plaintiff, and from an order denying alternative motion for non obstante or a new trial, defendant appeals. Affirmed, on condition that plaintiff consent to a reduction in the amount of the verdict.
F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis (W. H. Gillitt, of Hastings, of counsel), for appellant.
Tautges, Wilder & McDonald, of Minneapolis, for respondent.
Defendant appealed from an order denying its alternative motion for judgment non obstante or for a new trial.
Action brought by guardian ad litem to recover damages under the Federal Employers' Liability Act (45 USCA §§ 51-59) for injuries sustained by plaintiff on November 1, 1926, while employed by defendant as a section laborer at Channing, Mich., such employment having been continuous for eight months preceding the accident. The complaint charged negligence of defendant; the answer denied it, and alleged assumption of risk by plaintiff, which was denied by the reply.
Plaintiff was 20 years of age. He was one of a crew of four men riding upon a motor car, similar to a section handcar, but gasoline propelled. The crew consisted of a section foreman, plaintiff, and two other laborers. On the day in question, the foreman was seated on the left front side of the car; plaintiff, by direction of the foreman, was seated on the right front side, and the other two men on the right and left rear sides. On several other days, plaintiff had occupied, by direction of the foreman, either the right or left rear side.
The complaint contained the usual allegations in this kind of negligence actions, including, among others, failure to furnish a reasonably safe place to work, omission to warn and advise of risks, dangers, and hazards of occupation, which were unknown to and not appreciated by plaintiff, and also alleged the operation of the car at a high, excessive, and dangerous rate of speed and without having the same under reasonable or proper control. Plaintiff also claimed that, while this car, operated by the foreman, was going at such excessive and unusual rate of speed, it gave two violent jerks causing an iron lining bar, about 5 feet long, to be thrown ahead and to stick in between the ties, catching plaintiff under the knee and throwing him in front of the car, so that he was run over and injured. As usual, the evidence was conflicting. The jury returned a verdict for $33,000, which was reduced by the court to $28,000, but it was ordered that, in case plaintiff did not accept such reduction, a new trial should be granted solely upon the question of damages. The reduction was accepted.
1. The court permitted the defendant, without plaintiff's objection, to amend its answer, so as to permit a further defense of contributory negligence and to allege that any injury sustained by plaintiff was caused by his own want of care. At the conclusion of plaintiff's case, he moved to amend the complaint, so as to make it more specific, and so as to conform to the proof. This motion was granted over the objection of defendant. Defendant moved for a continuance on the ground that the amendments injected a new issue into the case, which motion was denied. Both rulings are assigned as error. The amendments did not materially change the issues; defendant made no showing that it would require additional time to prepare for trial, or to secure new witnesses to meet the testimony already offered by plaintiff. The witnesses that defendant then had in court were evidently prepared to testify on all the issues in the case and did so. Defendant was not prejudiced. Had new material issues been put in the case by the amendments, and a proper showing made as to the necessity for a continuance, the situation would have been entirely different as it was in Despatch Laundry Co. v. Employers' Liability Assur. Corp., 105 Minn. 384, 117 N. W. 506, 118 N. W. 152.
The allowance of amendments during a trial is well within the discretion of the trial court and its action will not be reversed on appeal, except for a clear abuse of discretion. See sections 9280, 9281, G. S. 1923 (Mason's Minn. St. 1927, §§ 9280, 9281); Adams v. Castle, 64 Minn. 505, 67 N. W. 637; Briggs v. Rutherford, 94 Minn. 23, 101 N. W. 954; Foster v. Gorden, 96 Minn. 142, 104 N. W. 765; English v. Mpls. & St. P. S. R. Co., 96 Minn. 213, 104 N. W. 886; Schultz v. Thompson, 156 Minn. 357, 194 N. W. 884; State v. Wiese, 161 Minn. 28, 200 N. W. 746; Carlson v. Lesselyoung, 163 Minn. 517, 204 N. W. 326; Johnson v. Elmborg, 165 Minn. 67, 205 N. W. 628; 5 Dunnell's Dig. (2d Ed.) § 7708 et seq., and cases cited. The same rule maintains generally as to granting or refusing to grant continuances. 1 Dunnell's Dig. (2d Ed.) § 1710, and cases cited. The court did not commit error.
2. Plaintiff was permitted to call Federspiel, the section foreman, for cross-examination under the statute, over objection of defendants. Section 9816, G. S. 1923 (Mason's Minn. St. 1927, § 9816), provides: * * *" Witness was, both at the time of the accident and at the time of the trial, and for two years had been in the employ of defendant as a section foreman. At the time of the accident, he was exclusively in charge of and operating the motor car, and plaintiff and the other two employes were working under his sole direction and supervision. He also inspected the tools on the car as a part of his duties. Under the situation in this case, cross-examination under the statute was properly permitted. Bennett v. Backus Lbr. Co., 77 Minn. 198, 79 N. W. 682. The cases of May v. C., M. & St. P. Ry. Co., 147 Minn. 310, 180 N. W. 218, and Moore v. St. Paul City R. Co., 136 Minn. 315, 162 N. W. 298, are readily distinguishable. If it had not been proper to so permit, there was no error, for an examination of the entire record shows that defendant was not prejudiced thereby. 6 Dunnell's Dig. (2d Ed.) § 10327 (b), and cases cited; Bernick v. McClure et al., 107 Minn. 9, 119 N. W. 247; Smith & Nixon Piano Co. v. Lydick. 110 Minn. 82, 124 N. W. 637; Laystrom v. City of Ada, 110 Minn. 340, 125 N. W. 507.
3. Error is assigned on the allowance of answers to two questions which were objected to on the ground that they were leading and suggestive. There was no abuse of the discretion vested in the trial court. Its control in that regard is practically absolute. Usher v. Eckhardt (Minn.) 222 N. W. 924, filed this term.
At the close of plaintiff's case, defendant moved for a dismissal of the case on the ground that plaintiff had failed to show any actionable negligence on the part of defendant; that his story as disclosed was a physical impossibility and that plaintiff had assumed the risk. At the close of all the testimony defendant moved for a directed verdict on the ground that, as a matter of law, the accident could not have happened in the way plaintiff testified; that he assumed the risk, and that he had failed to show any actionable negligence on the part of defendant. Both of these motions were denied, and we think properly so. There was a question of fact, which was clearly for the determination of the jury.
4. The trial court instructed the jury as follows: "You are also instructed at this time to disregard the arguments of counsel on the question of contributory negligence as the court will not instruct you on that question and does not believe it is for your consideration, and it so has been agreed by counsel that the question of contributory negligence is not a jury question, so you are to disregard the arguments of counsel on that question." This is assigned as error. There is nothing in the record or in defendant's brief to indicate that a wrong statement was made by the court as to the agreement of counsel as above stated. No exception was taken by defendant to the charge. It was not made through mistake and inadvertence. No error was committed.
5. In its charge relative to damages, the court stated "If you find by a fair preponderance of the evidence that the defendant was negligent and that negligence was the proximate cause of the injury and you do not find that plaintiff assumed the risk, you will find for the...
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