Mikkelson v. Truesdale

• Decision Date: 09 December 1895
• Docket Number: Nos. 9733-(138).,s. 9733-(138).
• Citation: 63 Minn. 137
• Parties: KARL MIKKELSON v. W. H. TRUESDALE, Receiver.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

63 Minn. 137

KARL MIKKELSON v. W. H. TRUESDALE, Receiver.¹

Nos. 9733-(138).

Supreme Court of Minnesota.

December 9, 1895.

Appeal by defendant from an order of the district court for Freeborn county, Whytock, J., granting plaintiff's motion for a new trial. Affirmed.

Albert E. Clarke and Wilbur F. Booth, for appellant.

John A. Lovely and Henry A. Morgan, for respondent.

START, C. J.²

This is an action against the receiver of the Minneapolis & St. Louis Railway Company to recover damages for a personal injury.

The defendant, at the close of the evidence, moved the court to instruct the jury to return a verdict for the defendant, on the grounds: "First. There is no evidence of negligence on the part of the defendant. Second. The injury complained of and alleged to have been sustained by the plaintiff, resulted from the negligence of a fellow servant of the plaintiff. Third. The plaintiff's own negligence contributed to and caused the injury and accident complained of. Fourth. The service in which the plaintiff was engaged was not of such a character as to make the defendant liable under the statute for an injury resulting from the negligence of a fellow servant." The court granted the motion, and instructed the jury to return a verdict for the defendant upon the ground, as we infer from the record, that the fellow servant statute of this state did not apply to receivers of railroad corporations, to which instruction the plaintiff excepted, and subsequently moved the court for a new trial, and the defendant appealed from an order granting the plaintiff's motion.

1. The defendant contends that the court erred in granting a new trial, because there was no evidence that the defendant was negligent in the premises, but that the evidence establishes the fact that the plaintiff was guilty of contributory negligence, and therefore its instruction to the jury to return a verdict for the defendant was correct. As we understand the record, the trial court has never passed upon the evidence, so far as it relates to the question of the negligence of the defendant and the contributory negligence of the plaintiff. We have, however, examined the evidence, and are of the opinion that the instruction of the trial court cannot be sustained upon the ground either that there was no evidence tending to establish the negligence of the defendant, or that the evidence shows that the plaintiff was guilty of contributory negligence. So far as these questions are concerned, the evidence is such as to require their submission to the jury.

2. It is further claimed by defendant that the plaintiff was not injured while engaged in the operation of a railroad, or by any hazards incident to such operation. The plaintiff was a wiper, whose duty it was to keep the engines at the roundhouse clean and to assist the "hostler," whose duty it was to take the engines in and out of the roundhouse, and take them to the coal shed for coal. The plaintiff was injured while assisting in the coaling of an engine, by its being negligently moved, as he claims, by the hostler. If his claim is correct, he was injured by reason of exposure to the hazards peculiar to the operation of railroads. Nichols v. Chicago, M. & St. P. R. Co., 60 Minn. 319, 62 N. W. 386.

3. The last claim of the defendant is that the employés of a receiver temporarily operating a railroad are not within the protection of the fellow servant statute of this state (G. S. 1894, § 2701), which reads as follows: "Every railroad corporation owning or...