Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co. , 156 Minn. 338 ( 1923 )

Stone, J.

(dissenting.)

I dissent. I fail to find in the record any evidence supporting the “shim” theory, except the testimony impeaching the foreman Anderson. Therefore I agree with the majority that the shim theory must be disregarded. That leaves us as the only possible cause of the derailment the “wabbly” condition of the car, due to the bent axle. But the trouble there is that it does not seem to have occurred to any participant in the trial that the bent axle had anything to do with the derailment, except that it was claimed to have caused the vibration which shook off! the shim that was averred to have caused the derailment.

It is rather an anomalous thing, it seems to me, to sustain a verdict when at the same time we demolish the foundation upon which the jury put it. We cannot say that the result would have been the same, had the shim theory been taken from the jury and the case submitted to them on the theory that the bent axles, without the intervention of the shim, might be found to have been the proximate cause.

I feel that there should be a new trial, and therefore dissent.