Witherell v. M. & St. P. R'Y Co.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Berry
• Citation: 24 Minn. 410
• Parties: RUSSELL WITHERELL <I>vs.</I> MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Decision Date: 09 March 1878

Page 410

24 Minn. 410 RUSSELL WITHERELL
vs.
MILWAUKEE & ST. PAUL RAILWAY COMPANY. Supreme Court of Minnesota. March 9, 1878.

This action was commenced before a justice of the peace in Dakota county, and subsequently brought by appeal upon questions of law and fact to the district court for the same county, where it was tried by Crosby, J., and a jury. The action was brought to recover damages for the killing of a colt, through the alleged negligence of the defendant. Plaintiff having rested, the defendant moved for a nonsuit, upon the ground that the evidence disclosed no cause of action against the defendant; the colt having been a trespasser, and the defendant not being liable except for the wilful injury or reckless misconduct of those employed in the management of the train. The motion for a nonsuit was denied, and defendant duly excepted.

The defendant also excepted to the following language in

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the general charge of the court: "Negligence, gentlemen of the jury, is the want of such care as a person of ordinary prudence would exercise under similar circumstances. In determining this question you will bear in mind the definition of negligence which I have given you. It is the want of such care as a person of ordinary prudence would exercise under the same circumstances. Applying this definition of negligence, you will determine from the evidence whether the defendant was negligent. If you find that it was not, your verdict will be for the defendant; if you find it was, your verdict will be for the plaintiff."

The court also said: "The plaintiff asks a special finding upon the only point that is really important in the case. He asks you to find this question: `Did the defendant's employes in charge of the train, after they discovered the peril of the colt, omit to do something to avoid striking the colt, which they might prudently have done, with reference to the safety of the train and passengers?' That you may answer by yes or no, as you may find the fact, and leave it with your general verdict."

The following requests, in behalf of the defendant, were respectively refused by the court:

"1. To return a verdict for the defendant.

"2. The defendant had the right to presume that the plaintiff would keep his colt at home, where he belonged, and owed the plaintiff no duty to look ahead to see where the colt was.

"3. That the defendant, as against this plaintiff, was under no obligations to set the brakes or endeavor to stop the train, until those in charge of the train saw the plaintiff's colt upon the track."

The jury after being out all night, returned to the courtroom for further instruction on the following question, which was submitted to the court in writing:

"At the time that the counsel for the defendant asked the court to grant a nonsuit for the reason that there was not sufficient evidence to show that there was any negligence upon

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the part of the employes of the company, did not the court overrule said motion on the ground that in his opinion there was sufficient evidence to go to the jury in regard to the negligence of the employes of said company?"

The court answered: "The question of the sufficiency of the evidence the court did not pass upon. The court simply held that there was some evidence the jury might consider, and it is for the jury to determine whether the evidence was sufficient to establish the fact of negligence or not. The court cannot instruct the jury...