Schendel v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 24 October 1930
• Docket Number: No. 27998.,27998.
• Citation: Schendel v. Chicago, M. & St. P. Ry. Co., 232 N.W. 629, 181 Minn. 395 (Minn. 1930)
• Court: Minnesota Supreme Court
• Parties: SCHENDEL v. CHICAGO, M. & ST. P. RY. CO.

232 N.W. 629

181 Minn. 395

SCHENDEL v. CHICAGO, M. & ST. P. RY. CO.

No. 27998.

Supreme Court of Minnesota.

October 24, 1930.

Appeal from District Court, Chippewa County; Harold Baker, Judge.

Action by A. D. Schendel, as special administrator of the estate of Charles Hilt, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. From an order denying his motion for a new trial after verdict for defendant, 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 respondent.

STONE, J.

This action under the Federal Employers' Liability Act (45 USCA §§ 51-59) and Safety Appliance Act (45 USCA § 1 et seq.) to recover damages for the death of a railroad employee has been through three trials and now makes its third appearance here. The first two trials resulted in verdicts for plaintiff. The first was set aside for error (158 Minn. 378, 197 N. W. 744), and the second for lack of sufficient substantial evidence in its support (165 Minn. 223, 206 N. W. 436). The third jury to pass on the facts found for defendant, and the case is now here on plaintiff's appeal from the order denying his motion for a new trial.

On the last two trials defendant rested on plaintiff's evidence. The facts were stated at such length by Mr. Justice Quinn when the case was last here that little of restatement or addition is now needed. It is enough to summarize the claims for plaintiff. They are that the deceased, Charles Hilt, a switchman in defendant's employ, was killed at Janesville, Wis., while attempting to uncouple a gondola car with a defective coupler from a box car with a good coupler, and that the defective coupler was the proximate cause of the accident, which occurred in the nighttime. Hilt was last seen either on the ground and while stepping between the cars or while stepping from the ground into a stirrup on his way over the drawbars to the other side of the train for the purpose, supposedly, of using the efficient coupler on the box car. The doubt at this point arises on testimony from the last witness to see Hilt alive as to the manner in which his lantern disappeared. That testimony is easily open to the construction that the lantern disappeared from view in such manner as to indicate that Hilt was stepping up into the stirrup on his way to the other side of the train. It does not at all compel the conclusion that he remained on the ground and went between the cars. There direct evidence stops, except that after Hilt disappeared there were two short movements, one forward and one backward. The latter was terminated by a "washout" stop signal. Hilt's mutilated body was found under the gondola car. It had been run into...