New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1879-09-03
DISTRICT COURT,
BROWN COUNTY,.
/ ISAAC Brown
Va

PETER RAILRoADC Co. ......55.
This action was brought on for trial
and duly tried before the court and a
Jury, at the MayG eneral Term thereof
1879, Messrs. Pierce, Webber& Thomp-
son appearing for the Plaintiff, and
Hon. Th0s. Wilson for defendant.
Upon the trial the Jury found YER
dict for the Plaintiff for Sc, OOO. 90, up
on which case was made and finally
settled and approved August IL, 1879.
Immediately therenpon and upon such
settled case, &C., defendant moved for
new trial for error in the charge of
the court in giving and refusing Ger.
tain instructions given and asked Tor
by deft. on the trial. These latter to
the number of Twenty-eight being
handed to the court, after the close OF
the argument by deft's. council, as an
entirety, Of which twenty or there
about were given as asked, the remain
der refused. On the 10th of August, a
paper purporting to be duly served
| notice Of motion for new trial, was
| received from deft' s. counsel assigning
the further cause and reason for new
trial ''That the verdict is contrary to
law and is not justified by the evil
dence'' s<
As this latter point was not mention
ed in the extremely long and able argu-
| ment of, nor yet in the brief furnished
by counsel Tor deft. or reference made
thereto, it can hardly be said that it is
4 subject for consideration ut this
time. $780,. .-...... ..........s. .....s
The sole and only question presented
and argued before me by the learned
counsel for the deft. is, ''Was Jacks,
tbs admitted road master of the deft.,
fellow servant of the plaintiff in the
employ of the defendant, the latter be.
ing day laborer or section hand at
work us such on the line of the deft's
railway!
No question of negligence nor unfit
ness or unskilfullness Of the road mast
er, nor defective machinery, but simp.
ly the question of fellow servant and
deft's. liability arising from road.
masters acts was argued. -&s5 ~l
The counsel for deft. did not arraign
the Objectionable charge by which he
has been aggrieyed seratim but gener.
ally as whole, upon the point of mas
ter and servant, claiming the question
of master and servant and fellow ser.
want to be one of law, not of fact for
a jury, and cited an English authority
sustaining his position but see XII m.
ball V. Cushman lob Mass. 1914. Crock
EFT v. Calvert s Ind. 1877. Kellogg v.
Payne 20 Ind. SIS cited So. Law Rev.
Vol. S No. 2 N. S. July 1879. Also
Bissex VIC. & N. w. R. R., N. w Rep.
4. 20, 20O., rs n. G. 5. C. B. & @ r r
V. Gregory SO Ill. IS. which throw a
different light on the subject. Also di.
rectly 70 Penn St-25. case of Mullen
V. Steamship Co. &c.
will not herein go into and consider
the charges as they are all abstract
questions of law, and if the precise
point before me is one of fact for a
jury to pass upon, I respectfully submit
no injury could arise whereby deft.
can be aggrieved IL Mimi. 1925. II Id
498. IL ID. 4l2 &c. &c. and recent cases
in Wis. Mich. Iowa, but unaware of
their practice not referred to. .+. 49,.
| Now what are the facts in the case at
bar, That Jacks was road master on the
road OF deft. a proper, competent and
tit person for such position and had
filled like positions ON other roads prior
to his employment by deft. -...-s,
That among other duties and powers
conferred upon him generally and spe-
cial, was that of clearing the road of
wrecks and wrecked trains.
That he had charge of the track
from WinOna westerly to the termin.
Gus of the road owned or controlled
by def't. and it was left for him to
take up wrecks according to has oavaa
judgement, and he had full control of
the manner and mode of doing it, and
had under him and in pursuance of
his directions the charge and direction
of this business when the plaintiff was
injured. It was left to his option hov
to qtse the men and machinery. If the
superintendent did not direct him how
4 piece of work was to be done. he
would do it without any directions.
1t was his duty to do so on account of
instructions given by Mr.. Sanborn, the
general superintendent, which duties
were defined by Sanborn.
He was foreman of the section men &c.
These extracts from the testimony
OF the Observation-Disclosures Road,
and Mr.. Jacks himself fully disclose
the relation that Jacks bears to the
defendant.
The argument of counsel in this
case has been, as heretofore remarked.
and as claimed in his brief before me.
is confined to these propositions:
1T is not pretended that Jacks was
incompetent. Hence he was fellow
servant OF plaintiff, there can be no re.
covery on account of his negligence
2. The plaintiff and Jacks were fel.
low servants within the meaning of
the rule referred.
The remaining points refer to the
charge and not distinctive points
claiming error in giving or refusing.
am therefore called upon to saw
from the evidence claimed, for, upon
no other hypothesis can it be asserted.
wrongfully and enormously submitted
to the jury, that Jacks was Il fellow
servant, of plaintiff.
The question if, as 1 respectfully
submit / believe to be one of fact not
OF law, may nevertheless be examined
in the light of a few authorities even
from legal stand point, yet fearful
with my limited ability and the paucity
OF authority at my command, that still
! may err to the prejudice of the great
interests involved in this cause. =.
FIRST. 1t may, I think, be safely
laid down that this is an action in tort
in which the master is in general liable
civilly for acts committed by his sar.
wants in the course Of or under color
of his employ East lO6. Southern
Law Review 5 No. 2 July 1879 citing
large number of cases both English
and American. -
At no time has it been disputed
throught this lengthy trial
'"rhat the master is not responsible
to one person in his employ for an in.
jury occasioned by. the negligence of
another in the same service, Cody on