Winters v. Minneapolis & St. L. R. Co.

• Decision Date: 19 November 1915
• Docket Number: No. 19480[119].,19480[119].
• Citation: 154 N.W. 964,131 Minn. 181
• Parties: WINTERS v. MINNEAPOLIS & ST. L. R. CO.
• Court: Minnesota Supreme Court

131 Minn. 181

154 N.W. 964

WINTERS

v.MINNEAPOLIS & ST. L. R. CO.

No. 19480[119].

Supreme Court of Minnesota.

Nov. 19, 1915.

Appeal from District Court, Ramsey County; William Louis Kelly, Judge.

Action by George H. Winters against the Minneapolis & St. Louis Railroad Company. From denial of alternative motion for judgment or new trial, defendant appeals. Affirmed.

See, also, 127 Minn. 532, 148 N. W. 1096.

Syllabus by the Court

The evidence was sufficient to go to the jury upon the question whether or not the defendant was negligent in using a wrench in a hydraulic jack, instead of a lever, and whether or not such negligence resulted in injury to the plaintiff.

The court did not err in rejecting evidence offered by the defendant as to experiments made with a jack and a lever on the day following the injury. W. H. Bremner and F. M. Miner, both of Minneapolis, for appellant.

Barton & Kay, of St. Paul, for respondent.

SCHALLER, J.

Action to recover damages sustained by the plaintiff while in the employ of the defendant. A verdict was had for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or for a new trial.

[1] 1. The case was here before, and is reported in 126 Minn. 260, 148 N. W. 106. The facts of the case are there stated in detail. It is unnecessary to repeat them. The evidence, with some exceptions, is the same on both appeals; and but one material question, not determined on the former appeal, is before us.

In the former case, on the pivotal question involved on the appeal, the court said:

‘The evidence is that Larson's jack, at the time of the foreman's direction to him to take it and go to the rear of the locomotive, was in proper position, with the pilot beam resting upon it. There is no evidence as to the condition of it afterwards. No one saw it go down. There is no evidence as to what became of it. No one knows just how the accident happened.

‘Conceding that the defendant was negligent in permitting the use of a wrench in lieu of a lever, we are unable to say that a jury could reasonably find that such negligence accounts for the plaintiff's injury. At the most such a finding is but a conjecture. It was just as likely a mere accident.

‘The court was in error in submitting the case to the jury upon the ground stated. The case is not one for judgment notwithstanding the verdict. There should be a new trial.’

The case was reversed because of the failure of the evidence to show...