Sours v. Great Northern Ry. Co.
| Decision Date | 13 November 1900 |
| Docket Number | Nos. 12,435 - (38).,s. 12,435 - (38). |
| Citation | 81 Minn. 337 |
| Parties | C. H. SOURS v. GREAT NORTHERN RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $15,000 for personal injuries. The case was tried before Kelly, J., and a jury, which rendered a verdict in favor of plaintiff for $10,000. On defendant's motion for judgment notwithstanding the verdict or for a new trial, the court made an order denying judgment, but granting a new trial. From this order defendant appealed. Affirmed.
C. Wellington, for appellant.
S. C. Olmstead, for respondent.
Plaintiff, while in defendant's employment as a yard agent at Como, was run down one evening about dark by a moving caboose, and brought this action to recover damages.
By the complaint, his right to recover was made to depend upon the existence of a rule, usage, or custom of defendant to operate and move its cars in the yard where plaintiff was injured with an employee upon the front end of the "cut," consisting of one or more cars, and, at night, with a light upon such front end; the object and purpose of the rule, usage, or custom being not only to control the speed and movement of the cut, but to give warning of its approach to yard employees. The yard used for making up trains was what is known as a "gravity," the descent being to the east; and the caboose which struck the plaintiff was, with another, dropping in that direction by the force of gravitation. At the trial plaintiff failed to show any printed rule of the character alleged. In fact, the only printed rule which was offered in evidence excepted, probably, cars and cabooses while in this yard, and while being handled for the making up of trains, and this rule was well known to plaintiff.
It therefore became material, according to the views of counsel for each party, for plaintiff to show the existence of the usage or custom independent of any printed rule; the object being to fasten upon defendant the charge of negligence, and at the same time to relieve plaintiff of apparent contributory negligence, which would, without regard to defendant's neglect, prevent him from recovering. For this purpose plaintiff and other witnesses testified as to a usage and custom, of long standing, to station a man upon each cut of one or more cars, that he might control its movements, regulate its speed, prevent collisions, and finally check and stop it at the proper place. But this man always took position, according to the evidence, at the brake, wherever it might be, and on box cars, which have but one brake, he might be at the front end, as the car moved, or at the rear. It depended upon the location of the brake. The allegation in the complaint as to the man being always stationed upon the front end of every moving car, or cut of cars, was not established by the evidence, nor was any attempt made to show that a light was always, or at any time, placed on the front end after dark.
What the result of this appeal might be if plaintiff's counsel had made no further effort to show the usage or custom we need not consider, for it...
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