
    C. H. SOURS v. GREAT NORTHERN RAILWAY COMPANY.
    
    February 13,1903.
    Nos. 13,218 — (96).
    Personal Injury — Contributory Negligence.
    
      Heldt in this a personal injury action, that the trial court correctly directed a verdict for the defendant, for the reason that the evidence conclusively established the contributory negligence of the plaintiff.
    Action in tbe district court for Ramsey county to recover $15,000 for personal injuries. Tbe case was tried before Otis, J., wbo directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.
    Affirmed.
    
      S. G. Olmstead and H. F. Stevens, for appellant.
    
      G. Wellington, for respondent.
    
      
       Reported in 93 N. W. 517.
    
   START, O. J.

Action to recover for personal injuries sustained by tbe plaintiff by reason of tbe alleged negligence of tbe defendant. On tbe trial, at the close of the evidence, tbe trial court directed a verdict for tbe defendant. Tbe plaintiff appealed from an order denying bis motion for a new trial.

Tbe sole question for decision is whether tbe evidence conclusively established tbe plaintiff’s contributory negligence. A brief statement of tbe history of tbe case in this court will aid in solving tbe question. On tbe first trial of tbe cause tbe plaintiff bad a verdict for $10,000, and on tbe defendant’s alternate motion for judgment notwithstanding tbe verdict, or for a new trial, tbe district court made its order denying tbe motion for judgment, but granted a new trial. Tbe defendant appealed, and tbe order was affirmed by this court. Sours v. Great Northern Ry. Co., 81 Minn. 337, 84 N. W. 114. Tbe second trial of tbe action resulted in a verdict for tbe plaintiff for $7,500, and tbe defendant appealed from an order denying its motion for judgment or a new trial. Tbe result of tbe appeal was that this court held that tbe plaintiff’s contributory negligence was. conclusively established. Sours v. Great Northern Ry. Co., 84 Minn. 230, 87 N. W. 766. Bef■erence is here made to the opinion on the second appeal for a full statement of the facts of this case.

The specific act of negligence on the part of the defendant relied upon by the plaintiff on the second trial was that it was the custom of the defendant to station a man on the front end of caboose ■cars as they were dropped down and through the gravity yard in which the plaintiff was injured, so as to control them, and to warn such of the defendant’s employees as might be upon the tracks of the approach of the cars, and that, as the plaintiff was .standing on or near one of the tracks in the yard for the purpose of handing a lantern to a conductor of a passing freight train, an unmanned caboose car was negligently sent down the track, in violation of the custom, which struck and injured him. It was, however, held that he was not justified in relying wholly upon an observance of the alleged custom, and closing his eyes to obvious and appreciated dangers, and that, if he had exercised ordinary care, he could and would have learned of and avoided the danger to which he was exposed by the nonobservance of the custom. It was therefore held that his contributory negligence was conclusively established. For this reason the order appealed from was reversed, and a new trial granted. This ruling is the law of this case, unless a different state of facts was presented by the evidence on the third trial.

It is the claim of the plaintiff that on the last trial new evidence was introduced, tending to establish, in addition to the facts appearing on the second trial, the invariable custom of the defendant, during the whole period of plaintiff’s service, of stopping the cabooses sent down the yard one hundred feet from the point where he stood when he was injured, and, further, that this custom was not observed at the time he was injured, but, on the contrary, the car was permitted to run down the gravity track beyond the usual place where cars were stopped until he was struck by it. The failure to observe this alleged custom as to the stopping of the cars is the specific negligence now relied upon to establish the defendant’s liability.

Conceding that the new evidence established all that the plaintiff claims for it, we are unable to see how it differentiates this, appeal, so far as any questions of law are involved, from the second appeal, wherein we held that, if the plaintiff had used due care, he would have observed that the approaching caboose did not have a brakeman on its front end, as was the usual custom, and that he was guilty of contributory negligence in not exercising such care. If, as we have held, the plaintiff, by the exercise of ordinary care, would have been advised that the caboose was coming down the gravity track without any one on its front to-control its movements and give notice of its approach, he would have been just as clearly advised thereby that it might not stop at the usual place as he was that the law of gravitation was. relentless and ceaseless in its operation. It is obvious that he had far less reason to rely upon an alleged custom to stop-the cars at the particular place than on the custom to place a man upon their front to control them and give warning to persons, working in the yard. Therefore, without restating or discussing the facts in detail, we hold, following the decision made on the second appeal herein, that the trial court correctly directed a. verdict for the defendant.

Order affirmed.  