Madden v. Duluth & Iron Range Railroad ( 1910 )

Lewis, J.

Respondent was a fireman on a locomotive engine in use by appellant railroad in hauling a gravel train from a certain gravel pit to the dump, some twelve miles distant. In returning from the dump, the engine, attached to a string of empty cars, was running backward, and while engaged in firing the engine respondent claims that he was violently thrown by the lurching of the tender and engine, which resulted in breaking his hip bone. It is charged in the complaint that the engineer was guilty of negligence in running the train at too great a rate of speed, and that there were certain defects in the track which caused the locomotive and tender to lurch as they passed over it. The main defense was contributory negligence in attempting to fire the engine under the circumstances.

A piece of sheet iron attached to the engine projected over the gangway between the engine and the tender to enable the fireman to pass from the engine into the tender to get coal, and the unevenness in the track, and the speed,' caused this plate to jump up and down, by reason of which respondent lost his balance.

We have examined the record, and find sufficient evidence to sustain the allegation of negligence. The engine was running backward at the rate of thirty-five to forty miles an hour at a place where the track was on a curve and uneven. When the engine and tender were backed at a greater speed than fifteen to twenty miles an hour, it became difficult for the fireman to stand or pass through the gangway. It does not conclusively appear from the evidence that respondent was guilty of contributory negligence, although in his attempt to put coal in the engine two shovelsful had been spilled, and he realized that the train was going at an increasing rate of speed. That he was violently thrown against a part of the engine, and was severely injured, there can be no question. That he appreciated the danger of attempting to fire the engine under the circumstances, or that he assumed the risk, is by no means certain. The question of the company’s negligence in handling the train, and the conduct of respondent in endeavoring to perform his duties, were questions of fact for the jury.

This action came on for trial first in March, 1909, during which time four witnseses testified on behalf of respondent as experts. One of them resided in Minneapolis, and the other three in Wisconsin. The action was then dismissed, and the present one commenced.

None of these four witnesses were present at the last trial, and the court allowed their testimony, given at the first trial, to be read to the jury. Objection was made that it did not appear that the witnesses were not at that time residents of Minnesota. Further objection was made that the rule which permitted such testimony to be read had no application to expert witnesses, for the reason that other expert witnesses, residents of Minnesota, could be called to testify on the same subject. Whether the evidence was sufficient to prove that the witnesses were nonresidents- was a matter directed to the discretion of the trial court, and we find no abuse of that discretion. Under the rule of evidence which enables the use of testimony of a witness given on a former trial, as defined in Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304, 53 N. W. 639, there can be no distinction between expert and other witnesses.

Affirmed.