McGillivray v. Great N. Ry. Co.
| Decision Date | 09 November 1917 |
| Docket Number | No. 20529.,20529. |
| Parties | McGILLIVRAY v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; Herbert A. Dancer, Judge.
Action by John McGillivray against the Great Northern Railway Company. Action dismissed at the close cose of plaintiff's case, and from an order denying a new trial, he appeals. Order affirmed.
Syllabus by the Court
A locomotive of defendant became derailed at a highway crossing by striking a pile of sand and gravel that was upon the crossing. Plaintiff, the fireman, was injured. The evidence failed to show how the sand and gravel came to be there, or that it had been there any length of time before the accident. It is held:
The rule of res ipsa loquitur has no application, as the crossing was not in the exclusive possession or control of defendant.
The evidence did not justify an inference of negligence on the part of defendant. W. A. Watts, of Duluth, and W. P. Crawford, of Superior, Wis., for appellant.
Baldwin, Baldwin & Holmes, of Duluth, for respondent.
This appeal is by plaintiff from an order denying a new trial. The action was dismissed at the close of plaintiff's case on the ground that the evidence would not sustain a verdict for plaintiff. The question for our decision is whether or not this ruling was right.
The case as it stood when the motion to dismiss was granted may be stated as follows: Plaintiff was the fireman on an engine of defendant that was pulling a passenger train between the cities of Grand Rapids and Virginia, Minn. Between these points defendant's railroad posses over at grade a highway crossing at the flag station of Alice. July 4, 1916, as the engine was running over this crossing, it left the track, and with the baggage car was derailed. The engine ran some distance on the ties, and then tipped over. Plaintiff, who was in the cab of the engine, attending to his duties as fireman, sustained the injuries to recover for which this action was brought. The evidence conclusively showed that what caused the derailment was a pile of sand and gravel upon the crossing. It failed utterly to show how this sand and gravel came to be on the crossing. There was no evidence as to who placed it there, or that it had been there any length of time before the accident.
Plaintiff makes two contentions: (1) The rule of res ipsa loquitur applies; (2) the proof justified an inference of negligence on the part of defendant with respect to the condition of the track at the crossing at the time of the accident.
[1] 1. The res ipsa loquitur rule does not apply. Without stopping to consider whether the facts would otherwise bring the case within the rule, it is clear that they do not, for the reason that the condition of the crossing was not exclusively under the defendant's control. The crossing was part of a public highway, heavily traveled. That one of the essentials to the application of the rule is that the thing causing the injury must be under the exclusive control of defendant is too well understood to require...
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