Manning v. Chicago Great Western R. Co.
| Decision Date | 29 December 1916 |
| Docket Number | Nos. 19,896-(46).,s. 19,896-(46). |
| Parties | JOHN MANNING v. CHICAGO GREAT WESTERN RAILROAD COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Blue Earth county to recover $30,000 for personal injury received while in the employ of defendant. The answer, among other matters, alleged that all the facts and conditions surrounding the accident, including the speed of the train, were open and obvious and known to plaintiff, and that he knew and appreciated whatever dangers were incident to his employment as locomotive fireman or involved in the act of jumping from the cab of his engine, and that he assumed the risks incident to his employment. The case was tried before Quinn, J., acting in place of the judge of the Sixth judicial district, who when plaintiff rested denied defendant's motion to dismiss the action, and at the close of the testimony defendant's motion for a directed verdict, and a jury which returned a verdict for $20,000. Defendant's motion for judgment notwithstanding the verdict was denied, and its motion for a new trial was granted, unless plaintiff consented to a reduction of the verdict to $15,000, to which plaintiff agreed. From the order denying its motion for judgment notwithstanding the verdict or for a new trial unless plaintiff consented to a reduction of the verdict, defendant appealed. Affirmed.
Briggs, Thygeson & Everall and Monte Appel, for appellant.
Plaintiff, a locomotive fireman, sued to recover damages for injuries sustained while in service by reason of the derailment of the engine. He recovered a verdict. Defendant appeals from an alternative order for judgment or for a new trial.
It would seem from the record that defendant's liability for the derailment was not very seriously contested. No evidence on this subject was offered by defendant. Nevertheless exception is taken to the instruction of the court on the subject.
1. Plaintiff's evidence was that the train was running 35 miles an hour around a sharp curve, and that after the derailment "the track was all torn up, and it appeared there was nothing left but rotten ties and broken rails." There was no denial of plaintiff's testimony. On this evidence the court instructed the jury that the burden of proof was upon the plaintiff to prove his right to recover, that the plaintiff claimed that the derailment was due to the negligence of the company in not keeping its roadbed and track in proper condition, and in the manner and speed of running its trains, and then said that "the mere fact that the locomotive left the track in this manner is prima facie evidence of negligence on the part of the defendant, and the burden then shifts and is upon the defendant to disprove negligence on its part." This last instruction is assigned as error.
2. The proof is undisputed that the train was an interstate train. The Federal Employer's Liability Act and Federal decisions accordingly furnish the exclusive rules of substantive law applicable to the case. Mondou v. N. Y. N. H. & H. R. Co. 223 U. S. 1, 55, 32 Sup. Ct. 169, 56 L. ed. 327, 38 L.R.A.(N.S.) 44; Missouri K. & T. Ry. Co v. Wulf, 226 U. S. 570, 576, 33 Sup. Ct. 135, 57 L. ed. 355, Ann. Cas. 1914B, 134; North Carolina R. Co. v. Zachary, 232 U. S. 248, 256, 34 Sup. Ct. 305, 58 L. ed. 591, Ann. Cas. 1914C, 159; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. ed. 1062, L.R.A. 1915C, Ann. Cas. 1915B, 475. But the rules of procedure are those of the forum where the action is brought. Norfolk Southern R. Co. v. Ferebee, 238 U. S. 269, 35 Sup. Ct. 781, 59 L. ed. 1303; Chesapeake & O. Ry. Co. v. Kelly, 241 U. S. 485, 36 Sup. Ct. 630, 60 L. ed. 1117.
3. The instruction complained of relates to the burden of proof. It is held that the question of the burden of proof of negligence is not mere matter of procedure, but matter of substantive law, and that it "arises out of the general obligation imposed upon every plaintiff, to establish all the facts necessary to make out his cause of action." Central Vt. Ry. Co. v. White, 238 U. S. 507, 512, 35 Sup. Ct. 865, 868, 59 L. ed. 1433, Ann. Cas. 1916B, 252.
4. The next question is, does this instruction square with the rules of law of the Federal Supreme Court on this subject?
Defendant, rightly assuming that this instruction applies the doctrine of res ipsa loquitur, contends that under the decisions of the United States Supreme Court that doctrine can in no case have application in an action for negligence brought by an employee against his employer. The decisions relied upon to establish that principle do not go so far. Union Pac. Ry. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. ed. 597; Texas & P. Ry. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. ed. 1136; Patton v. Texas & P. Ry. 179 U. S. 658, 21 Sup. Ct. 275, 45 L. ed. 361; Looney v. Metropolitan R. Co. 200 U. S. 480, 486, 26 Sup. Ct. 303, 50 L. ed. 564; Southern Ry. (Carolina Division) v. Bennett, 233 U. S. 80, 34 Sup. Ct. 566, 58 L. ed. 860. In the last case where that question was urged upon the court, it was disposed of with the statement that "the application of the doctrine to cases like that at bar is disputable," but it was said that Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 448, 36 Sup. Ct. 406, 408, 60 L. ed. 732.
In the circuit courts the decisions are not in harmony. The majority of them hold that there is no hard and fast rule that the doctrine of res ipsa loquitur can in no case be applicable in a suit by an employee against an employer for negligent injuries, but that the applicability of the rule is to be determined by the circumstances under which the accident is shown to have happened. Westland v. Gold Coin Mines Co. 101 Fed. 59, 41 C. C. A. 193; Cincinnati, N. O. & T. P. Ry. Co. v. South Fork Coal Co. 139 Fed. 528, 71 C. C. A. 316, 1 L.R.A.(N.S.) 533; Lucid v. Du Pont DeNemours Powder Co. 199 Fed. 377, 118 C. C. A. 61; see Byers v. Carnegie Steel Co. 159 Fed. 347, 86 C. C. A. 347, 16 L.R.A.(N.S.) 214.
In the late case of Southern Ry. (Carolina Division) v. Bennett, 233 U. S. 80, 34 Sup. Ct. 566, 58 L. ed. 860, an action under the Federal Employer's Liability Act, the court said of the doctrine res ipsa loquitur, that its application to that case would have been right or wrong, according to the res referred to, and that in a case where an employee was killed by the falling of his engine through a burning trestle, and there was evidence to show that the trestle was more or less rotten and that the fire was caused by the dropping of coals from an earlier train, and that the engine might have been stopped had a proper outlook been kept, it was held proper to instruct the jury that if a servant is injured through defective instrumentalities, it is prima facie evidence of the master's negligence.
Under our own decisions the rule has obtained for many years that as between employer and employee, the mere fact that an accident happens has no tendency to prove negligence, but that an accident may be of such a nature as to raise a presumption of negligence, and where the thing causing the accident is in the possession and under the control of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care and the plaintiff can in no sense be said to have contributed to it, then the fact that the accident happened affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of due...
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