Wilson v. Northern Pacific R. Co.

• Citation: 26 Minn. 278
• Parties: ALEXANDER WILSON <I>vs.</I> NORTHERN PACIFIC RAILROAD COMPANY.
• Decision Date: 26 November 1879
• Court: Supreme Court of Minnesota (US)

Page 278

26 Minn. 278

ALEXANDER WILSON vs. NORTHERN PACIFIC RAILROAD COMPANY.

Supreme Court of Minnesota.

November 26, 1879.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The facts of the case are stated in the opinion.

At the trial the plaintiff, testifying in his own behalf, stated that he was a married man, with five children, all girls. The defendant objected to this evidence and moved that it be stricken out as immaterial, and excepted to the overruling of the objection.

The plaintiff offered in evidence two telegrams from defendant's superintendent to its general manager, the first before and the second after he had visited the scene of the accident, stating among other things the amount of injury to the train and the track, and that a "switch-pin worked out, and allowed flange of wheel to mount end of rail." The evidence was admitted against defendant's objection that it was incompetent and immaterial, and the defendant excepted.

At the close of plaintiff's case the defendant moved for a verdict for defendant "on the ground (1) that there is no evidence of negligence on the part of the defendant; and (2) on the ground that there is no evidence that the injury sustained by the plaintiff was the result of that negligence, if any existed." The motion was denied, and the defendant excepted.

The defendant offered in evidence another telegram from its superintendent to its general manager, sent after the second of those offered by plaintiff, but on the same day, and in which he states the directions he had given for examination of all switches, and furnishing them with new locks, etc., before the accident, and also particulars of the extent of the accident and its cause. The evidence was excluded on plaintiff's objection that it was incompetent and immaterial, being a declaration of defendant in its own favor, and the defendant excepted.

At the request of the plaintiff the court instructed the jury on the subject of damages as follows: "If you conclude that the plaintiff is entitled to recover, you should award him by your verdict such an amount as will, in your judgment, compensate him for his injuries and suffering. You may take into account the permanence of his disability, his loss of time, his pain of body and mind;" to which instruction the defendant excepted. The other exceptions taken are stated in the opinion.

John B. & W. H. Sanborn, for appellant.

Davis, O'Brien & Wilson, for respondent.

GILFILLAN, C. J.

The plaintiff was injured while travelling as a passenger on a train run by defendant from Fargo to Casselton. The accident occurred in the night, as the train was passing a switch, going at the rate of about twenty miles an hour. At this place the rear car, a sleeping car, was thrown from the track, and, after being dragged some distance, was overturned and separated from the train. The plaintiff was sitting in the rear seat of the car next in front of the sleeping car, and was either thrown out upon the platform, and from the platform to the ground, and so injured, by the violent jerking and swaying motion imparted to the car he was in, as he himself testifies; or he jumped from the car, and was thereby injured, as testified by the conductor, a witness sworn for defendant. In the case of a common carrier of passengers for hire, the law requires the utmost human care and foresight, and holds the carrier responsible for the slightest negligence; and proof of any injury to a passenger from the breaking and giving way, or improper working, of the vehicle, or any of the machinery or appliances employed in carrying the passenger, makes a prima-facie case of negligence on the part of the carrier. In such case the law raises the presumption of negligence, and imposes upon the carrier, if he would relieve himself from liability, the burden of proving that the injury was not caused by any want of care and foresight on his part. Cooley on Torts, 552; Stokes v. Saltonstall, 13 Peters, 181; McLean v. Burbank, 11 Minn. 189 (277,) and cases cited; McMahon v. Davidson, 12 Minn. 357; Fay v. Davidson, 13 Minn. 523.

We have examined the evidence carefully, and do not find any that tends in any way to show that the accident was caused by anything than the want of care on the part of defendant. In the absence of such exonerating evidence, proof that the injury was caused by the sleeper running off the track entitled plaintiff to recover, unless there was negligence on his part contributing to bring about the injury. The evidence given by plaintiff, tending to prove that the sleeper was thrown off by a misplaced switch, did not add to his case. His right to recover would have been the same had that evidence been wholly omitted. So the telegrams introduced by him, whether competent or not, could not have affected the result. It has been repeatedly held by this court that a new trial will not be ordered on account of the admission of improper evidence, when we can see that it could not have affected the result. It is, therefore, unnecessary to determine the competency of those telegrams as evidence.

That the negligence of a plaintiff, seeking to recover for such an injury, contributed to the injury, is matter of defence. It is for the defendant to prove such contributory negligence. The plaintiff is not required, when making out his case, to give evidence upon that point. If, in proving his case, he does show such negligence, that is ground for dismissing his action, or for directing a verdict for defendant. When, upon the plaintiff resting his case, the defendant asked the court to direct a verdict for the defendant, the request seems to have been made on the ground of want of negligence in defendant, and not of contributory negligence on the part of plaintiff. But if it had been made on the latter ground, the court could not have granted it, without determining that plaintiff's account of how he came out of the car was false; for if he was...