Meehan v. Great Northern Ry. Co.

Decision Date05 November 1904
Citation101 N.W. 183,13 N.D. 432
CourtNorth Dakota Supreme Court

Appeal from District Court, Grand Forks county; Fisk, J.

Action by Daniel Meehan against the Great Northern Railway Company. Verdict for plaintiff. From an order denying judgment notwithstanding the verdict, or a new trial, defendant appeals.


Order reversed, and a new trial ordered.

C Wellington and C. J. Murphy, for appellant.

Expert testimony and opinion evidence based upon a proper foundation, and allowed, as a rule, upon questions of science, art, medicine and mechanics, where, from the nature of the subject examined, the fact upon which the opinions are based cannot be passed upon by the average man or juror, but where the facts can be placed before the jury in such a manner that they are just as competent to form an opinion or draw an inference as the witness is, then there is no room for expert or opinion evidence. Overby v. C. & O. Ry Co., 53 A. & E. Ry. Cases, 417.

The position of the head brakeman was at the head end of the train, or on the engine; and to observe the running of the trains, and watch for breaking in two of trains. Failure to instruct jury, that if they found that plaintiff was out of his proper place and such neglect was the proximate cause of his injury, he could not recover, was error. Green v. Br. & N. M. Ry., 88 N.W. 974.

Excessive damages appearing to have been given under influence of passion or prejudice is, in North Dakota, a ground for a new trial. Kennedy v. St. Paul City Ry. Co., 60 N.W 810; Thompson v. Chicago, St. P. & K. C. Ry. Co., 73 N.W. 707; Standard Oil Co. v. Tierney, 27 S.W. 963; Wood v. L. & N. R. Co., 88 F. 44; Brown v. Southern P. Ry. Co., 26 P. 579.

No presumption of negligence can flow from the mere happening of this accident. Trains often part from various causes. Kinkad v. O., S. L. & U. N. Ry., 53 A. & E. Ry Cases, 248.

Plaintiff assumed the risk consequent upon the liability of the trains upon which he was employed to part. Alcorn v. C. & A. R. Co., 108 Mo. 81; Rodgers et al. v. Leydon, 26 N.E. 210; Reitman v. Stolte, 22 N.E. 304.

Where a servant has equal means of knowledge of danger with his master, so that they stand on equal footing, and the servant is not specifically commanded as to time and manner of doing work, but when told to do a particular thing has such discretion that he can control the means, time and manner of doing the work, then, unless he does it in the way and with the means which will be safest, he is guilty of contributory negligence. English v. C., M. & St. P. Ry., 24 F. 906; Claus v. N. S. Co., 89 F. 646; Sours v. Great Northern Ry. Co., 87 N.W. 766; Chicago & N.W. Ry. v. Davis, 53 F. 61; Schaivle v. L. S. & M. S. Ry. Co., 56 N.W. 565; Keys v. Pa. Co., 3 A. 15; Collins v. B., C. & N. Ry. Co., 49 N.W. 848.

P. J. McLaughlin and Geo A. Bangs, attorneys for respondent.

Expert and opinion evidence is admissible in all matters involving peculiar or special knowledge. The subjects are not confined to classed and specified professions; wherever special or peculiar skill or judgment applied to a particular subject is required to explain results or trace them to their causes, expert and opinion evidence is applicable. Story v. Maclay, 3 Mon. K. 480; Clifford v. Richardson, 18 Vt. 620; Sturges v. Knapp, 33 Vt. 486; 2 Taylor on Evidence, section 1275; Krippner v. Biebel, 9 N.W. 671.

The qualification of the witness is in the discretion of the court, and the ruling is reviewable only in case of abuse. City of Ft. Wayne v. Coombs, 7 N. E, 743; Stillwell & Bierce Mfg. Co. v. Phelps, 130 U.S. 520, 9 S.Ct. 601; Fruit Dispatch Co. v. Murray, 96 N.W. 83.

The running and operation of trains is so far an act outside of the experience and knowledge of ordinary persons as to render the opinions of experts admissible. Belle Fontaine R. R. Co. v. Bailey, 11 Ohio St. 333; Illinois Central R. R. Co. v. Reedy, 17 Ill. 580; Cooper v. Central R. R. Co., 44 Ia. 140; Brabbits v. Chicago & N.W. Ry. Co., 38 Wis. 289; Davidson v. St. Paul, M. & M. Ry. Co., 24 N.W. 324; Chicago Ry. Co. v. Shannon, 43 Ill. 339; Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537; Whitsett v. Chicago, R. I. & P. Ry. Co., 25 N.W. 104; Kolsti v. Minneapolis & St. L. Ry. Co., 19 N.W. 655.

Expert testimony on various subjects was admitted in the following cases, in which it was held that the discretion of the court was not abused: Olmstead v. Gere, 100 Penn. St. 127; Leopold v. Van Kirk, 29 Wis. 548; Mayo v. Wright, 29 N.W. 832; Kraatz v. Brush Electric Light Co., 46 N.W. 787; Kuhns v. Wisconsin, I. & N. Ry. Co., 31 N.W. 868; Tebo v. City of Augusta, 63 N.W. 1045; Woodward v. Ry. Co., 122 F. 66; Healy v. Visalla & T. Ry. Co., 36 P. 125; Yarnish v. Tarbox, 59 N.W. 300; Peerless Mach. Co. v. Gates, 63 N.W. 260; Little Rock v. Shoecraft, 56 Ark. 465; Camp Point v. Balou, 71 Ill. 417; Laird v. Snyder, 26 N.W. 654; Ruglehaupt v. Young, 17 S.W. 710; International v. Klaus, 64 Tex. 293; Horam v. Chicago, St. P., M. & O. Ry. Co., 56 N.W. 507; Haviland v. Manhattan Ry. Co., 15 N.Y.S. 898; 131 N.Y. 630, 30 N.E. 864; Pullman v. Smith, 14 S.W. 993; Kendrick v. Central Railroad & Banking Co., 15 S.E. 685; Williamson v. Vinling, 80 Ind. 379; Taylor v. Baltimore & O. Ry. Co., 10 S.E. 29; McCray v. Ry. Co., 34 S.W. 95.

The damages were not excessive. As illustrating the amounts in various cases that have been approved, see the following cases: Thompson v. Chicago, St. P. & K. C. Ry. Co., 73 N.W. 707; Roth v. Union Depot Co., 31 L. R. A. 855, 43 P. 641; Chipman v. Union Pac. Ry. Co., 41 P. 562; Karaslch v. Kasbrouck et al., 28 Wis. 569; Schultz v. Chicago, M. & St. P. Ry. Co., 48 Wis. 375.

On judgment notwithstanding the verdict, the question, whether the defendant was negligent, was for the jury. McCreary v. Ry. Co., 69 S.W. 1037.

In determining this question the evidence should be considered according to the proof which it was in the power of the one side to produce and in the other to contradict, and the omission of a party to testify to facts in his knowledge, is also to be considered. McDonough v. O'Niel, 113 Mass. 92; Jansen v. Thomas, 81 F. 578; East Tenn. Ry. Co. v. Douglass, 19 S.E. 885.

That the train parted under the circumstances as it did, was prima facie evidence of negligence and entitled the plaintiff to have his case submitted to the jury. Kirst v. M., L. S. & W. Ry. Co., 1 N.W. 89; Mulcairns v. City of Janevsille, 29 N.W. 565; Sheridan v. Foley, 33 A. 484; Ryder v. Kinsey, 64 N.W. 94; Seyvall v. Ry. Co., 95 N.Y. 562; Carrol v. Chicago, B. & N. Ry. Co., 75 N.W. 176.

It was not necessary to show the specific defect which caused the train to part. Missouri etc. Ry. Co. v. Hawk, 69 S.W. 1037.

It is the absolute duty of the master not only to furnish reasonably safe instrumentalities, but to see that they are kept and maintained in a reasonably safe condition. Shortel v. City of St. Joseph, 16 S.W. 583; Dorsey v. Construction Co., 42 Wis. 583; Cook v. St. Paul, M. & M. Ry. Co., 24 N.W. 311; Mullin v. Northern Mill Co., 55 N.W. 1115; Hooper v. Great Northern Ry. Co., 83 N.W. 440; Perras v. A. Booth & Co., 84 N.W. 739, 85 N.W. 179; Olmscheid v. Nelson-Tenney Lbr. Co., 68 N.W. 605; Malcolm v. Fuller, 25 N.E. 83; Loucks v. Chicago, M. & St. P. Ry. Co., 18 N.W. 651.

Plaintiff was not guilty of contributory negligence. To charge him with such, the evidence must be so clear as to leave no room to doubt and all the material facts must be conceded or established beyond controversy. Field on Damages, 519; Beach on Contributory Negligence, section 447; Ry. Co. v. Sharp, 63 F. 532; Chicago, M. & St. P. Ry. Co. v. Lowell, 151 U.S. 209, 14 S.Ct. 281, 38 L.Ed. 131; Bluedorn v. Ry. Co., 18 S.W. 1103; Weller v. Ry. Co., 25 S.W. 532.

Negligence which is not the proximate cause of the injury is not contributory negligence. Ry. Co. v. Mansburger, 65 F. 196; Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Boyle v. Degnan, 61 N.Y.S. 1043; Bassett v. Fish, 75 N.Y. 303; Mather v. Rillston, 156 U.S. 399, 15 S.Ct. 464; Ry. Co. v. Steinburg, 17 Mich. 99; Park v. O'Brien, 23 Conn. 347; Christianson v. Northwestern Compo-Board Co., 85 N.W. 826.

From no point of view was the defendant entitled to a judgment notwithstanding the verdict. It will not be rendered unless the right is clear, and if the evidence lacking to sustain a cause of action may be supplied, such judgment should not be granted. Cruikshank v. St. Paul Fire & Marine Ins. Co., 77 N.W. 958; Kreatz v. St. Cloud School Dist., 81 N.W. 533; Jaroszeski v. Osgood & Blodgett Mfg. Co., 83 N.W. 389; Bragg v. Chicago, M. & St. P. Ry. Co., 83 N.W. 511; Aetna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436.



Plaintiff sued to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant, and obtained a verdict for $ 8,000 damages. Defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial, and appealed from the order denying both motions.

The complaint alleged, in substance, that on April 10, 1902, the plaintiff was the head brakeman on defendant's freight train which ran from Grand Forks to Walhalla and return; that while the train was running between Grafton and Minto on the return trip the plaintiff, while in the discharge of his duties, and exercising due care, was proceeding along the top of the train from the caboose towards the engine, and fell off the end of one of the cars, and received the injuries complained of; that, unknown to plaintiff, the train had broken in two, and he fell off of the front end of the rear portion because of the unexpected break in the train. The...

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