Walter Breen v. Railway Transfer Co.

Yanderbuegh, J. The trial court granted a new trial in this case on the ground that the verdict was not justified by the evidence. If the evidence in plaintiff’s behalf was such as to require the case tó bo submitted to the jury, or if there was a conflict of evidence upon the question of defendant’s negligence, it did not certainly so pre [8] ponderate in favor of the verdict as to warrant an interference by this court with the decision of the trial court in granting a new trial upon the ground stated. In this view of the case it is not material that the court may have considered the plaintiff’s evidence insufficient to establish the charge of negligence. In either view of the case there was no legal error in ordering that the issue be submitted to another jury. Johnson v. St. Paul, M. & M. Ry. Co., 43 Minn. 53, (44 N. W. Rep. 884;) Smith v. St. Paul & D. R. Co., 44 Minn. 17, (46 N. W. Rep. 149.) We think also that the court did not err in submitting the issue of defendant’s negligence to the jury. The accident in which plaintiff was injured occurred while he, with others, was engaged in loading flour from a mill into a car upon an adjoining side track. This was the business of these men, who are designated in the record as the “mill men.”- As soon as a car was loaded it was pushed down the track, which was on a descending grade, and its place supplied by others, placed on the track above by defendant to be loaded. The loaded cars were sometimes moved down by the mill men, but were ordinarily pushed down by the incoming cars. In loading, plank and skids were extended from the door of the mill into the cars, and used to facilitate the work. The negligence complained of is that the cars, on the occasion referred to, were backed down by the defendant without sufficient warning, and at an unusual and dangerous rate of speed, so that the plaintiff, who was at work about the cars, was suddenly caught and crowded in between the mill and the skid and injured, as the car, which was only partially loaded, was driven down the track. It was the business of the defendant to furnish cars for loading on the side track of the mill when required, and it was the custom of the mill men or their foreman to give seasonable notice to “the switching crew” charged with this duty, of the number of cars wanted. These cars were taken up the main track, switched onto the side track in question about one hundred and fifty feet above the mill, and then backed down to the mill. The evidence in the case appears to us to be conflicting on several material points. In the absence of well-defined regulations for con [9] ducting the business, certain usages had grown up, which the parties relied on, and to which they were expected to conform. And among them is evidence tending to show that it was.the custom of some one of the switching crew to notify the mill men, or some one of them engaged in loading the cars, that the empty cars were about to be set in upon the side track, and to get ready for it; and also that it was the invariable rule, prior to the accident, to back the cars down so slowly as to cause no danger to the workmen, or sudden movement to the loaded cars standing on the track. The defendant’s evidence also tended to show that the presence of one of the mill men upon the standing cars was a signal to the train men that the car was loaded and ready to be moved forward on the track, and an invitation to them to back down against the standing cars. And, though the evidence tended to show that the train men in this instance failed to give the formal and customary notice that they were about to set in the cars, yet that McHugh, the foreman of the mill men, saw the cars transferred to the side track, and saw them coming down, and that Bouse, another of the mill men, was actually standing on the car where plaintiff was at work; and counsel for defendant therefore contends that this was sufficient notice, and an invitation to the train men to back the cars down as they did, and an assurance that the ear was in readiness to be moved without risk, and, if so, the speed of the cars was immaterial. But McHugh testified, in substance, that when he discovered that the cars had been transferred, and were backing down on the inside track, they were moving so fast that he had not sufficient time to give the warning from the place where he stood in the street. And Bouse, it seems, did not get up on the car for the purpose named. He was on the deck of another car on the middle track, and when he saw the transferred cars coming down he jumped over upon the car that was being loaded to release the brakes, supposing from the fact that they were approaching so rapidly, that the usual notice had been duly given by the train men; and the collision was at that time imminent, so that, if his evidence is true, the cars were not backed down by his invitation. If it be true that no notice was given by the train men, and McHugh and Bouse were surprised and [10] misled by the rapid approach of the cars, then the question whether they were moving at an unusual and reckless speed was material, because it was, under the circumstances, fraught with danger to the men. What the usages of the business were, whether or not they were complied with, or whether, if omitted, the omission was material, or whether the train men were themselves at fault or derelict in duty, and whether the speed of the cars was unusual or dangerous, were, we think, questions for the jury. Order affirmed. (Opinion published 53 N. W. Rep. 975.)