Herman v. Wabash Railway Co.
| Decision Date | 29 September 1922 |
| Docket Number | 23,028 |
| Parties | ANDREW HERMAN v. WABASH RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Pine county to recover $50,000 for personal injuries. The case was tried before Searles, J., and a jury which returned a verdict for $12,526.30. Defendant's motion for judgment notwithstanding the verdict was denied. From the judgment entered on the verdict defendant appealed. Affirmed.
Appeal from denial of judgment notwithstanding verdict.
1. Where a defendant does not ask for a new trial, but bases the appeal solely on the ground that judgment should have been ordered non obstante verdicto there must be an affirmance unless the record clearly discloses that the cause of action sought to be established does not in point of substance constitute a right of recovery.
Such judgment not warranted when right of recovery given at common law.
2. The record indicates the existence of a right of recovery under the common law ground of negligence, and hence, even if the court was in error in submitting the case upon the existence of a defective handhold in violation of the Federal Safety Appliance Act, final judgment should not be entered for defendant.
Sanborn, Graves & Ordway, for appellant.
Tom Davis, Ernest A. Michel and Ottocar Sobotka, for respondent.
Plaintiff was awarded damages for an injury to his person. Defendant moved for judgment notwithstanding the verdict. It was denied. The appeal is from the judgment entered on the verdict.
The complaint alleged that plaintiff was in defendant's employ in interstate commerce when the injury was received, defendant operating a line of railroad in such commerce; that the injury was caused by the negligent operation of the train from which it was the duty of plaintiff then to alight, in that it failed to make the usual stop or slow down, but instead accelerated the speed with a jerk; and that it negligently permitted one of the handholds on the coach used by plaintiff in alighting to become loose so that it gave way when the train lurched, thereby throwing plaintiff to the ground causing his injury.
This appeal reaches no ruling on the admission or exclusion of testimony, nor the theory upon which the court submitted the case to the jury, nor the amount of the verdict. Appellant does not ask for a new trial. The simple proposition upon which appellant must depend, is that the record clearly shows that under no theory of the law can it be held liable for respondent's injury.
Plaintiff was a coach cleaner and had so served defendant for about four years. He lived in Council Bluffs, Iowa. His hours of labor were from midnight until 8 a.m., and the usual procedure was to board the train as it came in from the trip from Brunswick, Missouri, to Omaha, Nebraska, and had pulled back to the yard at Council Bluffs, and there clean the coaches, then to stay on until the train moved to the next trip's starting point, at Omaha, dusting the seats, etc on the way there, fill the gas tank at Omaha, and then remain on the train after passengers were received, until it arrived at the so-called Northwestern crossing at Council Bluffs, where a slow down or stop was made, when plaintiff would alight to go to his home. The train made other stops in Council Bluffs, but this was nearest to plaintiff's home, and he testified to an understanding when first employed at this work by which he was to be permitted to leave the train at that place. On the morning in question he attempted to leave as usual and claims that he was on the steps of the coach ready to drop off, but that, instead of stopping or slowing...
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