Olthoff v. Great N. Ry. Co.

• Citation: 135 Minn. 72,160 N.W. 206
• Decision Date: 08 December 1916
• Docket Number: No. 20061[201].,20061[201].
• Parties: OLTHOFF v. GREAT NORTHERN RY. CO.
• Court: Supreme Court of Minnesota (US)

135 Minn. 72

160 N.W. 206

OLTHOFF

v.GREAT NORTHERN RY. CO.

No. 20061[201].

Supreme Court of Minnesota.

Dec. 8, 1916.

Appeal from District Court, Stevens County; Stephen A. Flaherty, Judge.

Action by Henry Olthoff against the Great Northern Railway Company. From an order denying a motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

There is evidence in the record sufficient to sustain the verdict.

There was no abuse of discretion by the trial court in permitting two certain witnesses to testify, over an objection that no foundation had been laid, as to the distance within which a train could be stopped. The question whether a witness is competent to testify as an expert is primarily for the trial court and is largely within its discretion.

A certain instruction to the jury did not inject a new issue into the case and was not erroneous. M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

James B. Ormond, of Morris, for respondent.

SCHALLER, J.

On July 2, 1915, the plaintiff, who had been in the service of defendant as section man for about eight months, was engaged in his work as such. His duties consisted in inspecting and working on the track, cutting weeds from the right of way, adjusting and tightening bolts, tamping ties, replacing old ties with new ones, spiking down rails, lining the track, fixing switches and work of a similar nature.

His employer furnished hand cars which conveyed the section men to and from their work and transported the materials and implements necessary thereto. The hand car in use on that day was of the usual type, with black wheels, a brownish red floor or platform about 2 feet from the top of the rail and handles for operating it placed at a height of 3 or 4 feet above the platform.

Defendant's railroad track is straight and level for about one mile east and one mile west of Donnelly station in Stevens county, Minn. The view along the track is unobstructed by buildings, weeds trees or shrubs, so that a person standing on the track one mile west of Donnelly could on a clear day see and distinguish persons or objects on the track at a distance of two miles to the east.

On the 2d of July, which was a bright, clear, unclouded day, at about 11 o'clock in the morning, plaintiff and another section hand, named Leir, had taken the hand car to a point some 2,500 feet east of Donnelly, where they left it on the main track while they were working in the immediate vicinity. As they were about to start back with the hand car, their attention was called to a man in an automobile in the public road, which at that point was very close to the right of way. The automobile seemed to be stalled in the mud. The driver called to plaintiff and Leir who went towards the automobile which was about 100 feet distant from the hand car. Before they started to help the motorist they looked up and down the track to see if any train was in sight; but they neither saw nor heard one. They went to the stalled automobile and assisted the driver in getting it out of the rut. They had been there about five minutes when they discovered a train approaching from the west. They immediately ran towards the hand car to take it off the track, as was their duty, before the train arrived, there being, as they knew, danger to both life and property if a collision occurred. When about 50 feet from the hand car they saw the train passing the section house, which is east of the depot and a little over 2,000 feet from the point where the hand car was standing. About that time the whistle on the locomotive was blowing short, sharp blasts as a danger signal. Reaching the hand car, Leir grasped the west end thereof and swung it off the north rail. Plaintiff attempted to lift the east end of the hand car over the rail. Leir started to help him, but looking up, saw that the train was almost upon them. He jumped to the north and into the ditch, escaping injury. Plaintiff also attempted to leap out of danger and had cleared the north rail when the engine struck the hand car and demolished it. Parts of the car struck the plaintiff, throwing him into the northerly ditch and seriously injuring him. The train was brought to a stand, the engine stopping at a point about 600 feet beyond the place where plaintiff was injured.

The action was brought under the provisions of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), and was tried to a jury which returned a verdict for the plaintiff. Defendant made a blended motion for...