Orth v. St. Paul, M. & M. Ry. Co.

• Citation: 50 N.W. 363,47 Minn. 384
• Parties: ORTH v ST. PAUL, M. & M. RY. CO.
• Decision Date: 25 November 1891
• Court: Supreme Court of Minnesota (US)

47 Minn. 384

50 N.W. 363

ORTHvST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

Nov. 25, 1891.

(Syllabus by the Court.)

In an action to recover for personal injuries alleged to have been caused by the negligence of the defendant, it is not necessary to establish with absolute certainty the connection of cause and effect between the negligent act and the injury. It is sufficient if the evidence furnishes a reasonable basis for satisfying the minds of the jury that the act complained of was the proximate and operating cause. But this conclusion must not rest on mere conjecture. A recovery cannot be had where the evidence merely shows that it is possible that the injury was produced by a cause for which the defendant would be responsible, but more probable that it was produced by a cause for which he was not.

Appeal from district court, Stearns county; SEARLE, Judge.

Action by Peter Orth against the St. Paul, Minneapolis & Manitoba Railway Company to recover for personal injuries. Verdict for plaintiff. Reversed.

M. D. Grover, for appellant.

Theo. Bruener and D. T. Calhoun, for respondent.

MITCHELL, J.

This action was brought to recover damages for personal injuries. Plaintiff was employed by defendant as a locomotive fireman. He and one Smith, as engineer, left St. Cloud in the morning upon an engine having attached a snow-plow in front and a caboose in the rear. Their object and duty was to clear the track of snow. They reached Fergus Falls between 3 and 4 o'clock in the afternoon. After waiting there for a time, they started to clear the track on the Pelican branch to Elizabeth, a distance of about 10 miles. They encountered considerable snow, and had made two or three stops, in or after passing through drifts, to get up steam. After passing through a large drift, and while running at the rate of from 25 to 30 miles an hour, and about 7 miles out from Fergus Falls, the engine “kicked,”-that is, the furnace door was blown open,-and flames, fire, etc., from the furnace burst into the cab with such force as to compel the plaintiff, the engineer, and Deveney, the road-master, who was also aboard, to jump out. Deveney was not hurt, the engineer was killed, and plaintiff very seriously injured. The engine, with the snow-plow and caboose attached, ran on until stopped in a snow-bank, about a mile and a half from the place of the accident. No claim was made on the trial that the engine was defective. The theory upon which the plaintiff tried and submitted his case in the court below, and the only one upon which he seeks to sustain his verdict here, is as follows: First, that the engineer negligently allowed the engine to “work water,” which means that he failed to close the injector when he ought to have done so, and thus permitted the boiler to fill with water, so that it overflowed into the dry pipe, and passed with the steam through the cylinder, and out of the exhaust nozzles into the smoke arch, and through the smoke-stack and netting; second, that this water, with the smoke, possibly aided by oil from the cylinders, clogged up the netting of the smoke-stack, so as to prevent the exhaust, etc., from escaping through the stack; third, that this forced it through the flues in the boiler into the fire-box or furnace with such force as to blow open the furnace door, and drive the flames and gas into the cab. In order to find a verdict for the plaintiff, the jury must have found his contention true as to all three of those propositions; and the only question is whether the evidence justified the verdict.

The evidence is altogether too voluminous to permit us to do more than to summarize it, and state certain general conclusions at which we have arrived after a careful perusal of the entire record. One peculiarity of the case is that, aside from the testimony of plaintiff himself and the witnesses who testified to the condition of the engine when found in the snow-bank after the accident, the evidence is mainly expert or opinion testimony, consisting largely of speculation or mere theory. The plaintiff testified that during the trip from Fergus to the place of the accident the engineer permitted the engine to work water. On his examination in chief he conveyed the idea that this was very frequent, although on his cross-examination he did not claim to have noticed it more than three or four times. He also testified that...