Marshall v. Chicago, Rock Island & Pacific Railway Company

• Court: Minnesota Supreme Court
• Writing for the Court: TAYLOR, C.
• Citation: Marshall v. Chicago, Rock Island & Pacific Railway Company, 149 N.W. 296, 127 Minn. 244 (Minn. 1914)
• Decision Date: 30 October 1914
• Docket Number: 18,805 - (69)
• Parties: PETER MARSHALL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

149 N.W. 296

127 Minn. 244

PETER MARSHALL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Nos. 18,805 - (69)

Supreme Court of Minnesota

October 30, 1914

Action in the district court for Waseca county to recover $3,000 for personal injury sustained while in the employ of defendant. The case was tried before Childress, J., who when plaintiff rested denied defendant's motion to dismiss the action and at the close of the testimony defendant's motion to direct a verdict in its favor, and a jury which returned a verdict for $1,500. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Reversed and new trial granted.

SYLLABUS

Evidence of custom -- instruction to jury -- verdict.

Where the court in an action to recover for personal injuries instructed the jury that plaintiff could not recover, unless a custom existed to give warning of the danger, and there is no evidence tending to prove the existence of such custom, a verdict for plaintiff cannot be sustained.

Edward C. Stringer, McNeil V. Seymour and Edward S. Stringer, for appellant.

Moonan & Moonan, for respondent.

OPINION

TAYLOR, C.

Plaintiff recovered a verdict for personal injuries, and defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.

At the time of the accident, a bridge crew, of which plaintiff was a member, were engaged in removing from a trestle bridge a bent or row of piling which had become decayed to such an extent that it was to be replaced by new material. In constructing the bridge a heavy timber had been placed across the top of the bent or row of piling as a cap, and had been fastened to the piling by drift bolts driven through the cap and into the top of each pile near its center. In removing the piles, the crew cut them off eight or ten feet below the cap timber pushed or pulled the lower end of the upper piece free from the lower piece which was embedded in the ground, and then worked the upper piece loose from the drift bolt which held it to the cap timber. At all times prior to the accident, the upper piece, after it had been pulled free from the lower piece, had been held suspended by the drift bolt, which fastened it to the cap timber, until the men by twisting it and moving it back and forth worked it loose from such bolt. At the time of the accident plaintiff, unassisted, pulled the...