Noble v. Great Northern Railway Company

• Decision Date: 24 April 1903
• Docket Number: 13,426 - (71)
• Citation: 94 N.W. 434,89 Minn. 147
• Parties: GUY W. NOBLE v. GREAT NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

94 N.W. 434

89 Minn. 147

GUY W. NOBLE v. GREAT NORTHERN RAILWAY COMPANY

Nos. 13,426 - (71)

Supreme Court of Minnesota

April 24, 1903

Action in the municipal court of St. Paul to recover $78.50 for personal property lost or destroyed while in possession of defendant as bailee. The case was tried before Finehout, J who found in favor of plaintiff for $53.50. From an order denying a motion for judgment notwithstanding the findings or for a new trial, defendant appealed. Reversed, and new trial granted.

SYLLABUS

Appealable Order.

The defendant made a blended motion for judgment notwithstanding the findings or for a new trial in a case tried by the court without a jury, and appealed from the whole of the order denying both motions. Held, tat the order is appealable as one in effect denying a motion for a new trial, the motion for judgment being unauthorized.

Evidence -- Findings.

The findings of fact in this case are insufficient to support the legal conclusion that the defendant is liable for the loss of property alleged to have been delivered to it by the plaintiff for safe-keeping. Nor is the evidence sufficient to establish such liability.

R. A Wilkinson and W. R. Begg, for appellant.

Thomas M. Dill, for respondent.

OPINION

START, C.J.

This action originated in the municipal court of the city of St. Paul. The complaint alleges in effect that the plaintiff delivered to the defendant certain clothing and other personal property, of the aggregate value of $53.50, to him belonging, which the defendant agreed to keep safely and return to him on demand; that the defendant did not safely keep the property, but so negligently and carelessly conducted itself with respect thereto that by the negligence of the defendant such property was wholly lost to the plaintiff. These allegations were denied by the answer. The cause was tried by the court without a jury. As a conclusion of law from the facts found, the court ordered judgment for the plaintiff for the value of the property. The defendant made a blended motion for judgment notwithstanding the findings, or for a new trial, and appealed from the whole of the court's order denying both motions.

1. The plaintiff here urges that the order is not appealable. It is true, as claimed, that Laws 1895, c. 320, does not apply where a cause is tried by the court without a jury. Hughes v. Meehan, 84 Minn. 226, 87 N.W. 768. It follows that the defendant's blended motion was not lawyerlike, but the part thereof asking for judgment notwithstanding the findings was surplusage. If this surplusage be eliminated from the motion and the order, we have left a motion for a new trial and an order denying it, which is appealable.

2. The defendant's assignments of error are to the effect that neither the evidence nor the findings of fact sustain the order for judgment. The evidence tends to show that the plaintiff was a conductor of dining and sleeping cars in the employ of the defendant, and that on December 15, 1901, the train of the defendant, attached to which were dining and sleeping cars of which the plaintiff had charge as such conductor, was derailed and wrecked near Essex, Montana; that plaintiff remained at the scene of the wreck in charge thereof by direction of the train conductor for some five hours, when he left by the permission and on the authority of the defendant's assistant division superintendent. His testimony as to the alleged bailment and the loss of his property was substantially this:

"Q. You may state whether or not you called his [the assistant superintendent's] attention to the condition of the car and your personal belongings. * * * A. Yes, I told him I had personal clothing in there. I don't know as I named over the articles. I told him I had personal effects in the locker, and couldn't open it with a key; the...