Gorgenson v. Great N. Ry. Co.

• Decision Date: 09 November 1917
• Docket Number: No. 20494.,20494.
• Citation: 138 Minn. 267,164 N.W. 904
• Parties: GORGENSON v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

138 Minn. 267

164 N.W. 904

GORGENSON

v.GREAT NORTHERN RY. CO.

No. 20494.

Supreme Court of Minnesota.

Nov. 9, 1917.

Appeal from District Court, Yellow Medicine County; Richard T. Daly, Judge.

Action by Julia Gorgenson, administratrix, against the Great Northern Railway Company. Verdict for plaintiff, and from an order granting defendant's motion for a judgment notwithstanding the verdict, plaintiff appeals. Affirmed.

Syllabus by the Court

In a personal injury suit, the evidence is held insufficient to sustain a verdict for the plaintiff, and the trial court rightly granted judgment notwithstanding the verdict. Tom Davis & Ernest A. Michel, of Marshall, for appellant.

M. L. Countryman and A. L. Janes, both of St. Paul, for respondent.

PER CURIAM.

The plaintiff appeals from the judgment entered upon the order granting the defendant's motion for judgment notwithstanding, after verdict in favor of the plaintiff in a personal injury suit.

The plaintiff's intestate William A. Gorgenson was the rear brakeman on a freight train of the defendant. The train reached Litchfield going west at 6:40 in the evening of April 16, 1916. It was cut in two, left on the main track and the engine started switching. It was the duty of Gorgenson to protect the rear of the train. This means that it was his duty to go back and warn approaching trains, using flags, torpedoes, or fuses as occasion might require, and put a red light on the rear of the train. The rule required the placing of the red light at sunset, which at this time was 6:39, but in practice it was not unusual to exercise some discretion. The engine finished its switching at 7:50, and backed and coupled onto the rear part of the train. In doing this the standing cars were pushed back some 20 or 30 feet rather violently, and deceased was run over and killed.

It is not affirmatively shown that Gorgenson did not go back to the east to warn oncoming trains, nor does it affirmatively appear that he did. The fact is of importance only as it bears upon the question whether the trainmen should have supposed him to be at the rear of the train where he might be hurt by its movement. There is evidence that for some time, measured in minutes, just before the accident, he was at the rear of the train doing nothing in particular, and that when the train backed, not being attentive to the situation, he was struck. There is the testimony of a witness, who reached him immediately after the accident, that ‘he said ...