Kerrigan v. Chicago, Milwaukee & St. Paul Railway Company
| Decision Date | 13 June 1902 |
| Docket Number | 13,025 - (110) |
| Citation | 90 N.W. 976,86 Minn. 407 |
| Parties | JOHN E. KERRIGAN v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Winona county, Snow, J., denying a motion for judgment notwithstanding the verdict or for a new trial. Affirmed.
Personal Injury -- Negligence -- Contributory Negligence.
Plaintiff was in defendant's employ as a fireman, engaged as such on an engine equipped with a certain step, -- an appliance placed on the pilot to be used by employees in lighting or adjusting the headlight. The step became out of repair, and plaintiff was injured while using it in the discharge of his duties. Held, that the evidence is sufficient to sustain the verdict of the jury to the effect (1) that defendant had notice that the step was defective and unfit for use in ample time to have enabled it to repair the same before the accident to plaintiff; (2) that it was guilty of negligence in failing to do so; and (3) that plaintiff was not guilty of contributory negligence, nor did he assume the risks incident to the use of the step.
Wisconsin Statute -- Dismissal of Action -- Action in Minnesota.
R.S 1898, § 3072, of the state of Wisconsin, provides, among other things, that when an action is removed from the circuit to the supreme court of that state by defendant, and the order or judgment appealed from is reversed, and a new trial granted, the plaintiff shall pay the taxable costs, and proceed with such new trial within one year, in default of which the action may be dismissed. Held, that a dismissal of an action under said statute for failure of plaintiff to comply therewith is not a judgment on the merits, and is not a bar to another action in this state based upon the same cause of action.
Webber & Lees and H. H. Field, for appellant.
Tawney Smith & Tawney and Higbee & Bunge, for respondent.
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had a verdict in the court below for $8,475, and defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict, or for a new trial.
Plaintiff was a fireman in defendant's employ for ten years prior to the time of receiving the injuries complained of, and for the three years immediately preceding it worked on engine No. 190, with McLindon as engineer; his run being between La Crosse, Wisconsin, and Austin, Minnesota, a distance of about one hundred ten miles. His train made a round trip on each Monday, Wednesday, and Friday, leaving La Crosse in the morning, arriving at Austin at about twelve o'clock noon, and returning thence at about seven o'clock to La Crosse; arriving at the latter point at about eleven o'clock in the evening. This engine was equipped with the usual headlight on its front end; and on the left side of the engine, on the pilot deck, was a step, placed there for the purpose of being used by employees when lighting or otherwise adjusting the headlight. The step consisted of a disk five and one-half inches in diameter, with a corrugated top, to prevent one slipping when stepping upon it; and this was supported by a vertical shaft thirteen inches long, with a shoulder resting on the deck plate of the pilot. Below the shoulder projected a threaded stem one and seven-eighths inches long, penetrating the plate, which was three-sixteenths of an inch thick. The step was fastened by a nut screwed to the stem below, and against the deck plate. There was no guards or other fastenings to hold the step in an upright position, but, when securely fastened by the method stated, it was safe for all purposes for which it was intended. On February 19, 1897, plaintiff made use of this step, as his train was approaching the station of Grand Meadow, to turn up and adjust the headlight of the engine, and, by reason of the fact that it was defective and out of repair, was thrown to the ground, and seriously and permanently injured. In falling from the pilot his foot in some way got upon the track, was run over by the engine, and severely crushed, necessitating its amputation. He brought this action on the theory and claim that the defective step and its want of proper repair were due solely to the negligence of defendant.
Plaintiff had previously brought an action in the state of Wisconsin based upon the same cause of action and alleged negligence, and recovered a verdict in the circuit court of La Crosse county, in that state. The cause was removed to the supreme court of that state by appeal, and the verdict of the jury set aside, and a new trial of the action granted. Plaintiff took no further proceedings in the Wisconsin court, and his action was subsequently dismissed for his failure to pay the costs as required by the statutes of that state, after which he brought his action in the district court of this state.
It is contended on the part of defendant that the result of his action in the Wisconsin court precludes plaintiff's right of recovery or the right to maintain the action in this state; that the decision there was upon the merits of the controversy between the parties, and ought to be final. The statutes of the state of Wisconsin (R.S. 1898, § 3072) provide, in effect, so far as here pertinent, that where a cause is removed to the supreme court of that state by defendant, and the order or judgment appealed from is reversed, and a new trial granted, the plaintiff in the action shall pay the costs taxed against him, and apply for such new trial within one year, and if he fails to do so the action may be dismissed. The decision of the supreme court reversed the order appealed from, and granted a new trial of the action, but plaintiff never paid the costs or applied for a new trial; and the circuit court subsequently, upon motion of defendant, entered an order formally dismissing the action.
We are unable to concur with counsel for appellant that the judgment of dismissal, even if considered in connection with what the supreme court said in its opinion on the merits of the case, is a final judgment, barring another action in this state. It is elementary that a judgment not upon the merits, but of mere dismissal, is not a bar to a second action. Black, Judg. 508; Phelps v. Winona & St. Peter R. Co., 37 Minn. 485, 35 N.W. 273. The Wisconsin statute relied upon establishes nothing more than a local practice or procedure, and a judgment of dismissal taken thereunder should not be treated in another state as a final judgment on the merits of the action. In respect to its finality the judgment was of no greater force or effect than one of dismissal as for failure to prosecute the action, -- the same result that follows a failure to file a proper bond for costs, where such is required by statute. Black, Judg. 716, 723. These are elementary principles of the law, and it is clear that the legislature of Wisconsin did not intend their abrogation. The statute is highly penal, and must be strictly construed. Whereatt v. Ellis, 85 Wis. 340, 55 N.W. 407. See on the subject generally Bucher v. Cheshire R. Co., 125 U.S. 555, 8 S.Ct. 974; Gabrielson v. Waydell (C.C.) 67 F. 342. It follows that the Wisconsin judgment was an ordinary dismissal of the action, leaving the parties precisely as though no action had ever been brought in that state or elsewhere.
It is contended that there is no evidence in the case sufficient to charge defendant with actionable negligence. Our preliminary statement of facts is not as complete as it should be for a full understanding of the various questions presented, it being deemed advisable that they be stated in greater detail in connection with each branch of the case. The negligence of defendant does not seem to us at all doubtful. The evidence is very full and clear on the subject, and, beyond question, amply sufficient to sustain the verdict of the jury.
The accident resulting in plaintiff's injury occurred on February 19, 1897. On the previous trip from La Crosse to Austin, on February 17, the alleged defective step was discovered by the fireman to be out of repair. The nut by which it was held to the deck plate had become worn or loose so that the step was not tight, and was unsafe for use. By an appropriate rule for the orderly conduct of this branch of its business, defendant made it the duty of engineers to make a careful inspection of their engines after each trip, and to report any defect or defects requiring repairs to the roundhouse foreman, -- an employee having charge of that branch of the service. The company maintained extensive shops both at Austin and La Crosse for the purpose of keeping its engines and cars in condition and repair for use, and these places being the end of a trip, within the meaning of the rule as applied to this case, required a report by the engineer as to the condition of his engine at each. It was the duty of plaintiff, as fireman, to make reports of defects coming to his notice to the engineer; but he was not required to make such reports to any other person, -- at least, the evidence is such as to justify the jury in so finding. The attention of the engineer was called to the fact that the step was out of repair, and on the arrival of the train at Austin on the 17th he made proper report of the same to the roundhouse foreman, as required by the rule. The foreman, in turn, directed another employee (one Mayer) to make the proper repairs, which were made by him accordingly. After the repair had been made on that day, the engine started on its return trip to La Crosse, but before reaching that point the step was again found loose and unsafe for use. On the arrival of the train, defendant's...
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