St. Paul daily globe., 1896-02-08

SOliiiS1
James p Corbin, administrator of the estate
OF j. r. Corbin, respondent VS.. The Winona
&, st. Peter Railway COMPANY appellant
Syllabus. Held in an action to recover
damages by the alleged negligent killing Of
plaintiffs intestate, brakeman upon one of
defendants freight trains while he was COUP
ling fiat car, loaded with rails which pro-
jected over the deck of the car, that defend
ants negligence in attempting to haul the car
in its then condition was for the jury to deter
mine. .-.-,- So
g The law is that there must be want of
ordinary care, under the circumstances of the
case, contributing to the injury eff
icient and proXinate cause thereof, before con-
tributory negligence can exist.
But if the negligence, amounting to the abb
sence Of ordinary care, shall contribute, proX
imately, in any degree no recovery can be
had.
3. 1t was also for the jury in this case to
pass upon the question of plaintiffs contribu-
tory negligence.
Order affirmed. Collins, J.
Barney Thompson, respondent, VS.. Chicago
Great Western Railway Company, defend
ant, Chicago, st. Paul & Kansas City Rail-
way Company, appellant.
Syllabus-In an action brought by locomo-
tive fireman to recover for personal injuries
railway crossing, there was evidence which
would have warranted the jury in finding that
plaintiff was guilty Of contributory negli
gence. 5r
Held, that portion Of the charge to the
jury was erroneous, because it allowed the
plaintiff to be excused from the consequences
Of his own negligence directly contributing to
the injuries received.
Order reversed. Collins J.
Jacob Leque, as assignee, appellant, VS.. Franz
j. STOPPED ct al, respondents.
Held, in an action brought to set aside as a
fraud upon creditors certain conveyances and
transfers of >real and personal property by
a father to his sons, that certain findings of
fact, in effect, that the conveyances and trans
fers were made in pursuance of a previously
made and valid oral agreement, in good faith
and without any intent to hinder delay or de-
fraud the fathers creditors, supported
by the evidence and justified the conclusion Of
law.
Order affirmed. Collins, ].
Matthias o. Hemstad ct al, appellants, VS..
Martin Olson Hall, respondent
Syllabus-1. In a motion for judgment, not
withstanding the verdict, it was stated in an
affidavit and in the judges order granting the
motion, that certain proceedings took place on
the trial; settled case was subsequently made
the evidence introduced, and all the proceed
ings had, but which fails to disclose that any
such proceedings were had as above stated.
Held the settled case must control and can
not be contradicted impeached by the state
ments in the order and affidavit
2. 1t is error to grant motion, made under
Oh. $780, Laws of 1885, for judgment notwith-
standing the verdict unless the moving party
made motion to direct verdict in his favor
at the close of the testimony
Immediately on recording the verdict in
PLAINTIFFS favor the trial court set it aside
on It's own motion, and neither party objected
thereto; thereafter defendant moved for judg-
ment, Notwithstanding the verdict, under said
Oh. 320, the motion granted, and in the
order of granting the same the court, of its
own motion, set aside said order setting aside
the verdict.
Held when defendant made his motion the
verdict had been set aside and the case stood
for trial as though no trial had ever been had:
there was then no trial, with its evidence or
proceedings on which he could move for the
statutory verdict to be entered by the courts
order, under said Oh. 800, and the order of the
court, of its own motion, restoring and rein
stating, the evidence and proceedings. did not
cure the defective character Of defendants
motion, and it was error to grant the same
Judgment reversed -Canty J.
Edward H. Brevig, appellant, vs. Chicago, st.
Paul, Minneapolis & Omaha Railway Com
pany, respondent.
Held, freight train brakeman has implied
authority to eject trespassers and apparent
trespasSers from the freight cars of the train
But where person bribed such brake
man to permit him to ride amongst the freight
in a freight car,
Held, the brakeman and such person thereby
became joint trespassers, and the brakeman's s
implied authority to represent his employer
in ejecting such person thereby ceased so
that unless it appeared that the brakeman
had received a subsequent express authority
to eject such person, his act of doing so in
an improper manner was simply the assault
OF one joint trespasser upon another and not
the act of the railway company.
This is true even though the conductor had
in the meantime discovered such person in
the car and locked him in the same and he
continued to be locked in the car until
such brakeman unlocked the door and so
elected him.
On the evidence in this case held the plaint-
III was not a passenger but a Joint trespasser
with the brakeman who let him into the car
But whether the brakeman who let him into
the car was the same one who drove him
out was on the evidence, a question for the
jury.
Whether plaintiff was compelled by force to
jump from the train or whether his act was
so far voluntary that he could be guilty of
contributory negligence in jumping from the
train were on the evidence all questions for
the jury. Order reversed -Canty, ].
Lucien G. Quigley ct al, respondents, vs. St.
Paul Title Insurance & Trust Company. ap-
pellant.
Certain propositions Of law contended fer
by appellant, held not warranted by the eyi
dence.
Action by the insured against the insurer on
a title insurance policy.
Held, under the terms of the policy, when
the insurer corporation undertook to defend
the title or interest of the insured, it was
bound to protect him through all stages OF
the proceeding against him (as we'll after the
foreclosure sale as before the Judgment in
the proceeding) or else notify him that ii