Steffenson v. Chicago, Milwaukee & St. Paul Ry. Co.

Collins, J.

The only question presented or considered on the former appeal in this case — 45 Minn. 355, (47 N. W. Rep. 1068) — was whether the plaintiff, a section hand injured while riding on a hand car, was within, or protected, so to speak, by the coemployes’ act of 1887. It was there held that he was, and upon a second trial the verdict was against the defendant. The present appeal is from an order denying a new trial. The main facts were that plaintiff was on a hand car going easterly upon the railway, in the course of hie regular employment, with other sectionmen, eight in number, including their foreman. One Chapman had been overtaken as he was walking along the track, and, at the foreman’s invitation, had boarded the car, taking position at the rear or west end. There was the usual upright iron framework in the center of the car, with levers and handles by which it is propelled; and on the east end, rising, near the framework, a few inches above the floor or platform of the car, was the ordinary foot brake, used to stop, in connection with the handles. When starting out the men had taken their places at the handles as they chose, as was the custom, and without instructions, and had gone to work “pumping,” that the car might be propelled along the rails. The plaintiff, with three others, stood upon the east or forward end, riding backwards as they worked the handles, and in a row, plaintiff and one Connors on the inside. The former was upon the right, and Connors upon the left, side of the brake, and, of course, they stood close together. Observing an approaching train, the foreman ordered the car stopped. Connors applied his foot to the brake, and in so doing, it was alleged by plaintiff, negligently pushed • plaintiff off the ear onto the ground, thereby causing the injuries for which he demands compensation in this action. According to the complaint, the negligence relied upon to establish plaintiff’s cause of action was — First, in overloading the ear at the outset with the men ' and their belongings, and in further overloading when Mr. Chapman • was taken on; and, second, the careless and negligent pushing or crowding of the plaintiff from the car by Connors, when he used the brake. If it was not shown by adequate testimony that in one or both of these particulars there was negligence, the verdict cannot be -allowed to stand. The appellant’s counsel contend that there was ; not sufficient proof of either allegation of negligence, and also contend that the court erred when refusing to instruct the jury as requested by them on these points, as well as upon some other matters, to which brief reference will be made further on. We have exam- • ined the testimony carefully, and fail to find any which will sustain \ the charge that the car was overloaded at any time, unless we as..sume that nine or ten men, with their tools and dinner pails, would overload a ear of the size of the one in question. No one testified, or attempted to testify, that there were too many persons on the car when it started, or that it was overloaded when another was added; and it is plain that Chapman in no manner interfered with plaintiff’s safety, or in any way contributed to the accident. He boarded the car at the west end, and remained there, while plaintiff and three others were at the east end, and entirely cut off and separated from those upon the west end of the car by the upright frame, about three feet high, the levers, and the handles, the latter in motion. Again, it was undisputed that, while plaintiff had worked upon the section but eleven days, the nine men habitually rode upon the car when going to and returning from their work. The custom was to carry all these men, and of this plaintiff made no complaint. He also knew when the foreman invited Chapman to ride, and when the latter got upon the car, but made no objection. There were several reasons why all consideration of the charge of negligence in overloading the car should have been taken from the jury, but it was not. In the general statement of the law, without a request from plaintiff’s counsel, the court charged that, if the jury believed from the evidence that the inj ury was caused by negligence in overloading the car, or that overloading contributed to the injury, plaintiff was entitled to recover. This was error in view of the state of the proof, but defendant’s counsel neglected to take an exception. They did except, however, when the court refused to charge, as they requested, that there was no evidence which would warrant the jury in finding that the car was overloaded at the time of the accident. It was prejudicial error for the court to decline to give this request, for which defendant company is entitled to a new trial.

The manner in which plaintiff was pushed or crowded from the car was not made to appear with much definiteness, so far as his own testimony was concerned. He stated that, when the foreman cried, “Stop,” the man standing “beside of me pushed me off.” Being asked how Connors took hold of him, he replied, “He pushed towards me on one side so hard that I had to let go” of the handles. This was plaintiff’s version of the affair, and it might have been strictly true without .establishing Connors’ negligence. It would not .neceasarily follow from the fact that plaintiff was pushed and fell that the person who did the pushing was negligent. It was Connors’ duty to apply his foot to the brake, which was between the parties near the floor of the car, and in that way throw his weight upon it when told by the foreman to stop. The crowding or pushing might have been purely accidental. Or plaintiff might have been out of his place, or in such a position as to make it absolutely necessary that he be pushed, unless he got out of the way himself. Connors owed a duty to the defendant company, and to the other men upon the car, when the order came from the foreman. It was to be reasonably diligent, and to use ordinary care in respect to the brake. Had he failed to act with reasonable diligence, and omitted to exercise ordinary care when directed to stop the car, and a collision with the approaching train had resulted, he would have been guilty of negligence, and, in case injuries were received by the men, defendant company would have been declared liable in damages.

Now, from the testimony of other witnesses called for plaintiff, it seems that when the order came both Connors and himself had hold of the handles with both hands. The former did not remove his hands, but with a firm grasp, which aided in stopping the car, he turned his body, not in an unusual manner, towards plaintiff, in order to get his foot upon the brake, whereupon the latter let go, and fell backwards, or sideways, upon- the rails immediately in front of the car. It was so nearly stopped, however, that it did not touch him. With this state of the testimony the jury might have surmised that Connors was negligent, but, at best, it was exceedingly uncertain. In view of another trial, we call attention to this point at the present time.

The court ruled correctly when declining to give the appellant’s second, and third requests, not only for the reasons stated in respondent’s brief, but particularly because there was no testimony which would have justified the consideration of either.

When making the closing argument, and under defendant’s objections, one of plaintiff’s counsel was permitted by the court to read section one (1) of article eight (8) of the constitution of the state, to the jury,, ^pd also a portion of the opinion of this court in Lavallee v. St. Paul, M. & M. Ry. Co., 40 Minn. 249-252, (41 N. W. Rep. 974.) We have not been able to discover wherein the defendant was preju- ■ diced by counsel’s reading, but take this occasion to remark that’tbe practice of reading from the law books is an exceedingly dangerous one, and should not be indulged in. The law when presented in this form should not come from the counsel. We are not prepared to say that prejudicial error will always result from such a course of conduct, for it would probably depend upon the circumstances of the case in hand.

Order reversed,

(Opinion published 51 N. W. Rep. 610.)