Zuber v. Northern Pac. Ry. Co.

• Decision Date: 20 January 1956
• Docket Number: No. 36446,36446
• Citation: 74 N.W.2d 641,246 Minn. 157
• Parties: Elsie ZUBER, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY and The Pullman Company, Respondents, Chicago, Burlington and Quincy Rallroad Company, additional-party-defendant, Respondent.
• Court: Minnesota Supreme Court

Page 641

74 N.W.2d 641

246 Minn. 157

Elsie ZUBER, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY and The Pullman Company, Respondents Chicago, Burlington and Quincy Rallroad Company additional-party-defendant, Respondent.

No. 36446.

Supreme Court of Minnesota.

Jan. 20, 1956.

Syllabus by the Court.

1. The credibility of witnesses and the weight to be given to their testimony are solely for the consideration of the jury.

2. Negligence must be proved by direct evidence or by facts from which negligence can reasonably be inferred. In the absence of such proof, negligence will not be presumed.

3. Where different minds may draw different conclusions from the evidence, or, if there is a conflict in the evidence as to whether negligence, contributory negligence, or assumption of risk can be found from the facts in evidence as a proximate cause contributing directly to the result involved the questions are for the jury.

4. Where an employee who could give important testimony relative to issues in litigation is not present and his absence is unaccounted for by his employer who is a party to the action, an inference may be drawn that the testimony of such employee would be unfavorable to his employer, but this rule has no application where the witness is no longer in the employ of the party to the litigation.

5. The proper function of this inference is not to act as a substitute for affirmative proof, since it does not in and of itself constitute a true deduction, but rather it is to be used by the jury in weighing the evidence already produced.

6. Whether to instruct the jury on the adverse or unfavorable inference which may be drawn when an absent witness is unaccounted for by his employer who is a party to the litigation is largely discretionary with the trial court depending upon the circumstances and the feature of the evidence produced, and it is not necessarily error to refuse to give such instruction, since the court is not generally required to instruct the jury as to what inferences may be drawn from a set of facts. Counsel for the opposing party is privileged to comment on the absence of such witnesses in his argument to the jury if the circumstances and the feature of the evidence produced give rise to the inference.

7. The trial court did not commit prejudicial error in failing to notify counsel to be present when giving additional instructions requested by the jury for, while such notice is desirable and a courtesy which should be freely extended, it does not exist as a matter of right in civil cases; neither did the trial court's failure to reiterate from its original charge the law on burden of proof again at that time constitute prejudicial error since the same had been fully covered previously and the jury made no request to hear it again.

8. We adhere to the rule that 'want of ordinary care' is the test of contributory negligence, as of negligence; further, that there are two necessary elements to contributory negligence, the first being 'want of ordinary care' and the second, 'a causal connection between plaintiff's conduct and the accident'; and, finally, that the plaintiff's negligence if established is sufficient to bar recovery if it proximately contributes directly to the result.

9. Contributory negligence is to be distinguished from assumption of risk in the particular that in order that a defendant may avail himself of the doctrine of assumption of risk it must appear that the plaintiff had knowledge of the risk and that, having opportunity either to incur it or avoid it, he voluntarily chose to incur it.

10. Assumption of risk is to be distinguished from contributory negligence in all cases save where an assumption of risk is so unreasonable that it also constitutes contributory negligence.

11. If the evidence produced by a plaintiff tends to provide proof that such plaintiff was guilty of contributory negligence, or that plaintiff assumed the risk, the defendants would be entitled to receive the benefit of such proof.

12. A prior inconsistent statement, contradictory in fact, is always admissible to impeach a witness.

13. Where a witness admits unequivocally having made inconsistent statements, he has thereby impeached himself.

14. If there is no inconsistency, contradictory in fact, between witness's prior statements, oral or written, or between prior testimony and testimony given at the trial, there is no basis for impeachment.

15. Instructions to the jury must be construed together and are sufficient if, when construed as a whole, they properly state the law.

16. Ordinarily, if different persons might reasonably draw different conclusions from the evidence, the verdict should not be disturbed and every doubt should be resolved in its favor.

Joseph L. Bard and Donald Rudquist, Minneapolis (Harold A. Liebenson, Chicago, Ill., of counsel), for appellant.

Harry S. Stearns, Jr., Stearns, Baumgardner & Stearns, St. Paul, for the Pullman Co.

Thomas J. Stearns, St. Paul (Eldon Martin, Carl W. Krohl, Andrew C. Scott, Chicago, of counsel), for Chicago, B. & Q.R. Co.

M. L. Countryman, Jr., Earl F. Requa, W. S. Lycan, Jr., St. Paul, for Northern Pac. Ry. Co.

NELSON, Justice.

This is an action for personal injuries arising out of a railroad accident.

The plaintiff Elsie Zuber left Chicago accompanied by her daughter Florence Cummings at 11 p.m. July 16, 1949, as a passenger on the train known as the North Coast Limited. This train was under the control of the Burlington Railroad from Chicago to St. Paul and the Northern Pacific from St. Paul to Seattle, Washington, which was the plaintiff's destination. The plaintiff and her daughter occupied a roomette on one of the cars owned and serviced by the Pullman Company. Their baggage consisted of two large suitcases, a third one of medium size, and a small overnight bag. The Pullman porter first placed them in the language rack so that one extended over the shelf. The one which protruded was a heavy suitcase belonging to the daughter. The plaintiff's husband, being present while the plaintiff and her daughter were getting settled in the car, changed this arrangement to that none would protrude by putting one on the floor. The porter put this one back on the rack as it had originally been placed by him.

The plaintiff claims that the next morning, while the train was in St. Paul and shortly after she had arisen, one of the suitcases fell down from the rack onto her head and neck and that as a result she suffered injuries to her person. She first brought an action to recover damages against the Northern Pacific and the Pullman Company and later joined the Burlington as an additional party defendant. To place liability on the Pullman Company, plaintiff on this appeal relies on certain assurances which her testimony indicates the porter made to her in the roomette, in the presence of her daughter, when the bags were rearranged.

A verdict was returned in favor of all the defendants, and plaintiff moved, in the alternative, for judgment for the plaintiff on the merits notwithstanding the verdict or for a new trial on all issues. The court denied the motion and plaintiff appeals from the order, seeking a reversal of the order denying her motion for a new trial.

We are bound to regard the evidence in the light most favorable to the parties prevailing below and also to apply the rule that where the evidence is ambiguous, as some of it is here, it must be construed in favor of the party for whom the verdict is rendered. ¹

At the trial the plaintiff at first testified that the suitcases or bags rode properly from Chicago to St. Paul, but in her deposition taken earlier she had stated that they were jiggling and shaky and that she saw the bags extending over the edge of the rack and even watched them shaking. Finally at the trial she admitted that she could not be sure whether they had shaken and jiggled or not. The plaintiff's daughter testified that she and her mother did worry about the bags for a while, but that they soon forgot about them. At the trial the plaintiff testified that the bag fell at a time when the train gave a terrific jerk. In her deposition taken earlier she testified that there was a coupling movement at the time the suitcase fell, that 'there was nothing unusual' about it and that when she got up she 'felt something kind of strong, like it was coupling a car on or something and the bag came down'; also that the movement felt at that time was the normal movement of the train and one that she had felt at other times. Two days after the accident the plaintiff told a representative of the Northern Pacific at Seattle that the train had kind of jerked a little bit when it started, but that she did not pay much attention to it; that she thought they made a little turn, nothing unusual about the curve or the speed of the train; that they were going like they always did; and that she did not notive any unusual movement or jerk of the train. However, at the trial she said that 'all at once the train went a terrific jerk, I thought it was coming apart and this came right down on me.' She stated that when she got up in the morning the train was standing still and that, when the suitcase fell down and this strong or terrible jerk occurred, the train was moving and that it had then been moving about 10 or 20 seconds. She said the train continued on and next came to a stop at Minneapolis.

The only testimony produced as to the placing of the bags and as to what occurred to the bags on the trip in connection with the alleged accident was by plaintiff and her daughter. The Pullman conductor who came on the train at St. Paul, together with a Pullman porter and two other passengers, testified that he did not recall any unusual train movement and no terrific jerk. The Pullman porter who had placed the suitcases in the rack in plaintiff's roomette did not testify at the trial. He was not called as a witness by either of the...