Opperud v. Byram
| Decision Date | 13 January 1928 |
| Docket Number | No. 26421.,26421. |
| Parties | OPPERUD v. BYRAM et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Yellow Medicine County; Harold Baker, Judge.
Action by Will S. Opperud against H. E. Byram and others, receivers of the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff. From a judgment for defendants notwithstanding the verdict, plaintiff appeals. Affirmed.
Davis & Michel, of Minneapolis, for appellant.
F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, and Daly & Barnard, of Renville, for respondents.
Plaintiff recovered a verdict. On motion of defendants for judgment notwithstanding the verdict or for a new trial, the court granted judgment for defendants, and plaintiff appeals from the judgment entered.
The question presented is whether or not there was any evidence reasonably tending to prove negligence on the part of the defendants.
Judgment notwithstanding the verdict will not be granted if there is any evidence reasonably tending to support the verdict. Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958; Bragg v. C. M. & St. P. Ry. Co., 81 Minn. 130, 83 N. W. 511; Ferrell v. G. N. Ry. Co., 119 Minn. 302, 138 N. W. 284; Boyd v. City of Duluth, 126 Minn. 33, 147 N. W. 710; National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585.
Judgment will not be so ordered where there is a reasonable probability that the deficiency in proof can be supplied by another trial. Nadeau v. Maryland Casualty Co., 170 Minn. 326, 212 N. W. 595; Farmers' State Bank v. M. & M. State Bank, 164 Minn. 300, 204 N. W. 965.
The rule is sometimes stated in this form: That judgment notwithstanding the verdict will not be ordered unless the evidence is practically conclusive against the verdict. Hume v. Duluth & Iron Range Ry. Co., 149 Minn. 245, 183 N. W. 288; Trovatten v. Hanson, 171 Minn. 130, 213 N. W. 536.
Where there is no reasonable probability that the deficiency or want of proof can be remedied on another trial, judgment should be ordered. Howard v. Farr, 115 Minn. 86, 131 N. W. 1071; Melberg v. Wild Rice Lumber Co., 127 Minn. 524, 149 N. W. 1069; Willett v. C., M. & St. P. Ry. Co., 139 Minn. 288, 166 N. W. 342; Schmidt v. Capital Candy Co., 139 Minn. 378, 166 N. W. 502; In re Estate of Klessig, 153 Minn. 27, 189 N. W. 424; Beaton v. Duluth, etc., Ry. Co., 153 Minn. 505, 191 N. W. 44; Clough v. C., M. & St. P. Ry. Co., 154 Minn. 515, 191 N. W. 923; McDonald v. G. N. Ry. Co., 165 Minn. 30, 205 N. W. 633; Karras v. G. N. Ry. Co., 167 Minn. 140, 208 N. W. 655.
Where the evidence fails to show that the accident resulted from any negligence of the defendant, an order of the trial court granting judgment notwithstanding the verdict is proper. Clymer v. Kellogg, Spencer & Sons, 130 Minn. 327, 153 N. W. 602; Gorgenson v G. N. Ry. Co., 138 Minn. 267, 164 N. W. 904; McDonald v. G. N. Ry. Co. supra.
A verdict finding negligence cannot be upheld when based on speculation or conjecture. Swenson v. Erlandson, 86 Minn. 263, 90 N. W. 534.
A detailed statement of the facts in this case is not necessary. Plaintiff was a conductor on one of defendants' passenger trains. His run was from Sioux City, Iowa, to Mitchell, S. D., and back to Sioux City, where he resided. The train run was from Aberdeen, S. D., through Mitchell, to Sioux City, and return. Mitchell was a division point and train crews were changed there. The train left Aberdeen at 5:45 p. m. and arrived at Sioux City at 5:05 the next morning. It then remained at Sioux City until 6:45 p. m. when it started on the return to Aberdeen. Plaintiff's run was to take this train at Sioux City and run it to Mitchell, then turn it over to another train crew for the balance of the run to Aberdeen. He then ran either the next train on this schedule or another train back from Mitchell to Sioux City. He had been on this run for some time and was familiar with the train and its coaches and equipment. The train was the ordinary vestibuled passenger train, with coach, smoker, and one or two sleepers, all connected by vestibules. On each side of the door leading from the vestibule into each coach or car is a brass rod, a hollow brass tube about 36 inches long and about an inch in diameter, attached to the end of the car by a swivel joint near or on the door frame of the car, which permits the rod to be swung up or down. When the door from the vestibule to the outside is closed, this rod is not in use but is in a vertical position, the upper or swinging end being placed in a slot or clutch near the top of the coach door. When the door from the vestibule to the outside is opened at stations, or otherwise, so that people may enter or leave the train through the vestibule, this rod is swung down in front of the opened door into a horizontal position and the swinging end fitted into a slot or clutch near the outer corner of the coach. The rod then serves as a protection in front of the glass in the vestibule door and also as a handrail for persons entering or leaving the train. There is a catch on the end of the rod, which holds it in the clutch.
Plaintiff's testimony is that on the evening of July 29, 1925, he took this train out of Sioux City for the run to Mitchell; that...
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