Hoggarth v. Minneapolis & St. L. R. Co.

• Decision Date: 19 October 1917
• Docket Number: No. 20524.,20524.
• Citation: Hoggarth v. Minneapolis & St. L. R. Co., 138 Minn. 472, 164 N. W. 658 (Minn. 1917)
• Court: Minnesota Supreme Court
• Parties: HOGGARTH v. MINNEAPOLIS & ST. L. R. CO.

138 Minn. 472

164 N.W. 658

HOGGARTH

v.MINNEAPOLIS & ST. L. R. CO.

No. 20524.

Supreme Court of Minnesota.

Oct. 19, 1917.

Appeal from District Court, Hennepin County; E. F. Waite, Judge.

Action by John M. Hoggarth against the Minneapolis & St. Louis Railroad Company. Judgment for plaintiff, motion for judgment notwithstanding the verdict denied, and defendant appeals. Affirmed.F. M. Miner and M. M. Joyce, both of Minneapolis, for appellant.

Frank H. Morrill, of Minneapolis, for respondent.

PER CURIAM.

After trial defendant moved for judgment notwithstanding the verdict. The motion was denied. From the judgment entered pursuant to the verdict, defendant appeals.

[2] Since there was no motion for a new trial the errors assigned upon the excessive amount of recovery, the instructions of the court, and rulings at the trial cannot be considered. Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077;Daily v. St. Anthony Falls Power Co., 129 Minn. 432, 152 N. W. 840. ‘The above cases and the cases cited therein, also established the rule that judgment notwithstanding the verdict will never be granted for error in either law or procedure committed at the trial.’ Bosch v. Chicago, M. & St. P. Ry. Co., 131 Minn. 313, 155 N. W. 202. Therefore the only question before us is ‘whether there is any competent evidence reasonably tending to sustain the verdict.’ If the verdict be thus sustained, the judgment must stand. Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958, and cases cited in the second paragraph of section 393, Dunnell's Minn. Dig. Supplement.

The action was for recovery of damages for injuries received when plaintiff's foot was caught in an unblocked frog at a railroad switch. That a jury may find actionable negligence in the failure to properly block a railroad frog at a place where men are required to work goes without saying. Nor can there be any question that plaintiff's alleged contributory negligence was for the jury. The only debatable proposition in the case is whether the jury were justified in holding defendant responsible for the unblocked frog. Plaintiff's evidence showed that defendant's right of way is adjacent to certain grain elevators owned by plaintiff's employer. That these elevators are served by defendant through three side tracks located upon land of the elevator company. That at times defendant stores its empties on these tracks. That defendant installed a...