Johnson v. Duluth, W. & P. Ry. Co.

• Citation: 152 Minn. 151,188 N.W. 221
• Decision Date: 12 May 1922
• Docket Number: No. 22693.,22693.
• Court: Supreme Court of Minnesota (US)
• Parties: JOHNSON v. DULUTH, W. & P. RY. CO. et al.

152 Minn. 151

188 N.W. 221

JOHNSON

v.DULUTH, W. & P. RY. CO. et al.

No. 22693.

Supreme Court of Minnesota.

May 12, 1922.

Appeal from District Court, St. Louis County; Bert Fesler, Judge.

Action by Alex Johnson against the Duluth, Winnipeg & Pacific Railway Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

In a personal injury action, to constitute wanton conduct, the person committing the act must be conscious, from his knowledge of existing conditions, that his mode of action would naturally or probably result in injury. Without knowledge of the presence of some one liable to be injured, he could not have expected that his act would result in injury.

Proofs as shown by the record considered, and held, that it does not appear therefrom that the defendant charged with wanton conduct knew of the presence of the boy at the time, and that the order for judgment notwithstanding the verdict was justified. John Jenswold and John D. Jenswold, both of Duluth, for appellant.

Washburn, Bailey & Mitchell, of Duluth, for respondents.

QUINN, J.

Action to recover for personal injury to plaintiff's minor son, occasioned by the alleged wanton conduct of the defendant Benedict J. Venne, while acting as a fireman on one of the defendant company's locomotives. There was a verdict of $6,000 in favor of the plaintiff. Upon their motion the trial court ordered judgment for the defendants notwithstanding the verdict. From a judgment entered in accordance therewith the plaintiff appeals.

At the time and place of the injury there were two parallel railway tracks extending east and west, crossed at right angles by a public street. The locomotive in connection with which the injury occurred was upon the north track headed to the east. It was being used in switching and spotting cars. The plaintiff's son, Clarence, who was 15 years of age, was playing top with several younger boys at the northwest corner of the intersection. The locomotive backed up to the west side of the crossing and stopped. Clarence got onto the north end of the footboard at the front end of the locomotive, on the fireman's side, and Leonard Nelson got onto the opposite end. Clarence stood facing the locomotive with his elbows resting on the handrail, in the act of whittling a groove in his top. The locomotive, with the boys on the footboard, backed to the west some considerable distance and spotted some cars on a side track, then pulled ahead to within about 150 or 200 feet of the crossing, at which time and place the boy received the injury complained of.

The fireman saw the boys playing top as he passed, but he says he did not know any of them. He denies that he saw or knew that either of them got onto or was upon the footboard. Clarence testified that he stood on the board about over the rail of the track; that he tried to keep out of sight of the trainment; that as the locomotive started east after spotting the cars on the side track he peeked to see if any one was looking; that he then stepped in toward the coupling; that when they had gone but a short distance he felt some hot water strike him; that it came from the hose in the front window of...