McGinley v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 21 April 1922 |
| Docket Number | 22,806 |
| Parties | CLARENCE S. McGINLEY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Yellow Medicine county to recover $75,000 for personal injuries received while in the employ of defendant. The case was tried before Daly, J., who at the close of the testimony denied defendant's motion for a directed verdict, and a jury which returned a verdict for $45,000. Defendant's motion for judgment notwithstanding the verdict was granted and its motion for a new trial denied. From the judgment entered pursuant to the order plaintiff appealed. Reversed and remanded.
Judgment notwithstanding verdict -- when not to be granted.
1. Where a motion is made for judgment notwithstanding the verdict and in case that be denied, then for a new trial, the motion for judgment should not be granted, unless it clearly appears from the proofs that the cause of action or defense sought to be established could not, in point of substance constitute a legal cause of action or a legal defense.
Appeal and error -- what reviewable when motion for judgment is granted.
2. In passing upon the motion for judgment notwithstanding the verdict or for a new trial, the court granted the motion for judgment and denied the motion for a new trial. The appeal brings before this court only the correctness of the order granting the motion for judgment.
When trial court does not consider whether testimony is sufficient, supreme court will not.
3. Where, in passing upon a motion for judgment notwithstanding the verdict, the trial court orders judgment upon questions of law without considering whether the testimony supports the verdict, this court will not consider the testimony upon an appeal from such judgment until the trial court has considered the same.
Tom Davis, Ernest A. Michel and D. L. Kennedy, for appellant.
F. W. Root and C. W. Wright, for respondent.
Action to recover for personal injuries which resulted in the amputation of both of plaintiff's legs just below the knee. There was a verdict in favor of plaintiff for $45,000. Defendant made a motion in the alternative for judgment notwithstanding the verdict, and if that be denied then for a new trial. The court granted the motion for judgment and denied the motion for a new trial. Judgment was entered and plaintiff appeals therefrom.
There is little or no controversy as to the facts up to the time of the occurrence of the injury complained of. Plaintiff was employed as journal box packer and oiler in the defendant's freight yards at Janesville, Wisconsin. The yard is used exclusively for switching and the storage of freight cars. The tracks extend east and west. The main track is to the north, and south thereof are four switch tracks which are numbered from north to south and are so laid that the distance between the south rail of track 2 and the north rail of track 3 is about 8 feet. The overhang of freight cars is about 2 feet, so that the distance in the clear between cars upon adjoining tracks is about 4 feet. On June 12, 1920, a freight train pulled in on the main track. Plaintiff started to look after the journal boxes and when he had examined two or three a switch engine started with the string of cars to place them on track 3. Plaintiff then crossed over and started east between tracks 2 and 3, for the purpose of reaching the point in the easterly part of the yard where the cars would stop. The string of cars was then being pushed east on track 3, and as the first or second car was passing the plaintiff the accident occurred. The manner in which it occurred is the only serious question of fact involved in this litigation. Track 2 was clear of cars opposite the point of the accident. There was what is known as a "low joint" in the north rails of track 3, near this place, which allowed the wheels of cars passing over it to drop down below the general level of the rail about 2 or 3 inches, making the cars sway sidewise from 6 to 12 inches at the top. There were some pieces of coal between the tracks at this place such as are liable to shake off or fall from moving cars.
But two grounds of...
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