Gradin v. St. Paul & D. Ry. Co.

• Decision Date: 13 February 1883
• Citation: 30 Minn. 217,14 N.W. 881
• Court: Minnesota Supreme Court
• Parties: GRADIN v ST. PAUL & D. RY. CO.

30 Minn. 217

14 N.W. 881

GRADINvST. PAUL & D. RY. CO.

Supreme Court of Minnesota.

Filed February 13, 1883.

Appeal from order of district court, county of Ramsey.

E.R. Hollinshead and C. D. O'Brien, for respondent.

J. J. Egan and James Smith, Jr., for appellant.

DICKINSON, J.

The action is for the recovery of damages for injuries suffered by the plaintiff while riding on a train of the defendant, and through the negligence of defendant's agents. The defendant had undertaken, by contract with the C. N. Nelson Lumber Company to leave its (defendant's) cars on the line of road, (between stations,) where they were to be loaded with stone by the employes of the lumber company, and the defendant was to transport them to a point on its line called Cloquet. The plaintiff was one of a party of men employed by the lumber company, in loading the cars with stone and unloading them again at Cloquet. There was no express contract between the defendant and the lumber company respecting the carrying of these employes of the latter. For four or five days prior to the accident the business had been conducted as follows: The cars being loaded by the employes of the lumber company were taken up about noon of each day by a locomotive and train of the defendant and run to Cloquet, the men who had loaded the cars riding upon them to Cloquet. There they unloaded the cars and got their dinner, and were taken back in the same way upon the empty cars, which were again left on the track to be reloaded. But one such trip was made each day. The plaintiff had been thus employed three days prior to the accident. On that day the cars had been taken to Cloquet and unloaded, and returned as usual to be reloaded, and the engine and train passed on. Afterwards, on the same day, a fire occurring upon the line of road between the place where the cars had been left and Cloquet, the engine, with the caboose and two wood cars, with a party of railroad laborers, in charge of a conductor, returned, going towards Cloquet to put out the fire. There being no side track where the stone cars were standing, it was necessary to attach these cars, then only partially reloaded, to the train, and then to take them along towards the fire. The evidence tends to show that just before the train, thus made up, started, the plaintiff was upon one of the cars, engaged in the discharge of his duty, and that he did not afterwards get off the car. The fact is that the plaintiff and all his fellow-workmen got on the cars, or, being on them, remained there when the train moved off. It is very probable, from the evidence, and the jury may well have found fact to be, that the conductor who had charge of the train saw these laborers on the cars when the train started. The evidence is conflicting as to whether the conductor forbade the plaintiff and his fellows to ride on the cars on this occasion; but, under the instructions of the court, the general verdict of the jury in favor of the plaintiff must be regarded as involving the finding that the men were not forbidden to go, at least in any manner intelligible to the plaintiff. He is a foreigner, and understands very little of the English language. The evidence bearing directly upon the question of such prohibition, taken in connection with the probable fact, as disclosedby the evidence, that the conductor saw the men on the cars when the train started, and that all of them did go, well supports the conclusion of the jury. This, in connection with the fact that for some days prior to this occurrence the men had been accustomed to ride on the train for the prosecution of the...