Wilson, C. J.
This is an action brought by the plaintiff, a citizen of the state of Wisconsin, to recover'for personal injuries sustained, while in the employ of defendant as switchman, at Menasha in that state. His injuries resulted in the amputation of a leg. In the first trial he was awarded $25,000. In this, the second trial, a verdict of $15,000 was returned in favor of plaintiff. Defendant moved for judgment notwithstanding the verdict, which motion was denied. No motion for new trial was made. This appeal is from a judgment entered on the verdict.
Plaintiff bases his right of action upon the Wisconsin statutes. He pleads and sets forth in his complaint all of section 1816 of the statutes of the state of Wisconsin, except subdivision 8 thereof. The defendant pleads subdivision 8 in its answer. The reply was a general denial. At the trial, plaintiff placed in evidence that portion of section 1816 set forth in the complaint. That portion of the Wisconsin statute in evidence is similar to our statute upon the same subject. Defendant offered subdivision 8 in evidence which, upon objection, was excluded. The offer was made for the purpose of showing that the Wisconsin statute should not be given effect in this state because it is in derogation of the comity due from one state to another.
The reason the Wisconsin statute should not be given effect in this state, if there is any such reason, is found in that portion of section 1816 which was excluded. This court cannot take judicial notice of that portion of the statute which is not in evidence. It is not before us. Neither may we consider the correctness of the
ruling which excluded it, because this is an appeal from an order denying defendant’s motion for judgment notwithstanding the verdict. Northwestern M. & T. Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077; Helmer v. Shevlin-Mathieu L. Co. 129 Minn. 25, 151 N. W. 421; Prigge v. Selz, Schwab & Co. 134 Minn. 245, 158 N. W. 975; Hoggarth v. M. & St. L. R. Co. 138 Minn. 472, 164 N. W. 658; The National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585.
It is well settled that the only question which will be considered on an appeal from a judgment is, where a motion for judgment notwithstanding the verdict has been denied, whether there is any competent evidence reasonably tending to sustain the verdict. If the verdict be thus sustained, the judgment must stand.
The switching crew, of which plaintiff was a member at the time of the accident in April, 1922, was composed of 5 men — the locomotive engineer, the fireman, the conductor, Bichards the head switch-man, working next to the locomotive, and plaintiff, the rear switch-man, working at the opposite end of the train or string of cars. All 5 men were long experienced in the switching and handling of freight cars in the railroad business. On the morning of the accident, the locomotive was headed to the west. Attached to the tender of the locomotive were 7 flat cars, loaded with pulp logs to be delivered at or near the paper mills, on the log track east of where the locomotive was standing. The logs were not all of the same length. They were loaded in two tiers so that the ends of the logs at the end of the cars were not even, some extending out farther than others, and at each end there was a bare floor space from 4 to 6 feet wide. In moving to the log track, it was necessary for the locomotive to back up, pushing the 7 cars past the depot and the water tank. It was the custom to go onto the log track with a full tank of water. This custom was known to all members of the crew. The time of taking water was always determined by the engineer. There was a street crossing 3 carlengths east of the water tank. •
When there were but 3 cars, water was taken without uncoupling the locomotive, as this would not block the street, but with more
cars the engine would stop on the street, uncouple, and go back to tbe tank leaving the street open. When tbe accident happened, as hereinafter mentioned, tbe engine was 50 to 60 feet east of tbe street crossing.
When tbe locomotive started east with tbe 7 cars, plaintiff was standing on tbe car floor, at tbe east end of tbe most easterly car, 4 to 6 feet from tbe end and about 18 inches from tbe side, having a firm bold around a log that stuck out further than tbe other logs. Richards stood on tbe same floor on tbe north side and opposite plaintiff, but be, apparently in pursuit of bis duties as bead brakeman, climbed down on bis side before tbe accident happened. As tbe train was thus traveling at 5 to 6 miles per hour and before it reached tbe usual stopping place to separate tbe engine to go to tbe tank and leave tbe street crossing open, tbe engineer operated tbe locomotive so as to give a severe and unusual jerk, throwing plaintiff off ahead of tbe train, as it was backing up, and be says be landed on tbe ground 5 or 6 feet from tbe car in a doubled-up position, and as be was trying to get out of tbe way tbe train was burled toward him with awful force striking him in tbe back, knocking him down and passing two and a half cars over him, cutting off bis leg. Do tbe facts show actionable negligence?
Plaintiff was at tbe position on tbe car where bis duty required him to be. Tbe enginemen knew that somebody bad to be on that end of tbe car. It was plaintiff’s duty to be there to keep a lookout ahead. Tbe plaintiff was thrown off. This was done by tbe operation of tbe engine. Plaintiff claims that tbe engineer was negligent because of tbe failure to exercise that care which a person of ordinary prudence would exercise under tbe same circumstances. There is evidence to show that plaintiff was thrown off by an unusual and severe jerk caused by bringing tbe cars to a sudden stop when there was no necessity for it. It bad not yet reached tbe place where it was to stop for tbe engine to be uncoupled. Plaintiff testified: “It was a sudden and severe — just jerked tbe cars out from under me— tbe cars just bounded back.” He said be bad never experienced any such jerk before and that be bad ridden daily in tbe same place and in tbe same kind of work. He said be got a “terrific jerk.”
He said in switching work you do not get hard jerks like this kind of a one. He said: “You get hard jerks but not the kind that one was.” He said this jerk was not an ordinary jerk. The word “terrific” means terrible — appalling—it is akin to terror.
The mere proof of a severe jerk in the operation of a freight train is not sufficient to constitute actionable negligence. Perkins v. G. N. Ry. Co. 152 Minn. 226, 188 N. W. 564; Griffin v. Minn. Trans. Ry. Co. 94 Minn. 191, 102 N. W. 391; Beaton v. G. N. Ry. Co. 123 Minn. 178, 143 N. W. 324. But in the Griffin case the employe was not taken unaware. In the Beaton case the employe was not a member of the train crew and his presence was unknown to the train crew. The claim here that the engineer negligently applied the brakes so as to unusually jerk the train at a time and place where it was not necessary and not to be expected brings the case rather within the rule of LaMere v. Ry. Trans. Co. 125 Minn. 159, 145 N. W. 1068, Ann. Cas. 1915C, 667 and Fry v. M. St. P. & S. S. M. Ry. Co. 141 Minn. 32, 169 N. W. 147. In the Fry case the plaintiff was a head brakeman and he was riding on the rear end of an empty flatcar. Attached to the other end of the flatcar were 4 freight cars and a locomotive.
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Wilson, C. J.
This is an action brought by the plaintiff, a citizen of the state of Wisconsin, to recover'for personal injuries sustained, while in the employ of defendant as switchman, at Menasha in that state. His injuries resulted in the amputation of a leg. In the first trial he was awarded $25,000. In this, the second trial, a verdict of $15,000 was returned in favor of plaintiff. Defendant moved for judgment notwithstanding the verdict, which motion was denied. No motion for new trial was made. This appeal is from a judgment entered on the verdict.
Plaintiff bases his right of action upon the Wisconsin statutes. He pleads and sets forth in his complaint all of section 1816 of the statutes of the state of Wisconsin, except subdivision 8 thereof. The defendant pleads subdivision 8 in its answer. The reply was a general denial. At the trial, plaintiff placed in evidence that portion of section 1816 set forth in the complaint. That portion of the Wisconsin statute in evidence is similar to our statute upon the same subject. Defendant offered subdivision 8 in evidence which, upon objection, was excluded. The offer was made for the purpose of showing that the Wisconsin statute should not be given effect in this state because it is in derogation of the comity due from one state to another.
The reason the Wisconsin statute should not be given effect in this state, if there is any such reason, is found in that portion of section 1816 which was excluded. This court cannot take judicial notice of that portion of the statute which is not in evidence. It is not before us. Neither may we consider the correctness of the
ruling which excluded it, because this is an appeal from an order denying defendant’s motion for judgment notwithstanding the verdict. Northwestern M. & T. Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077; Helmer v. Shevlin-Mathieu L. Co. 129 Minn. 25, 151 N. W. 421; Prigge v. Selz, Schwab & Co. 134 Minn. 245, 158 N. W. 975; Hoggarth v. M. & St. L. R. Co. 138 Minn. 472, 164 N. W. 658; The National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585.
It is well settled that the only question which will be considered on an appeal from a judgment is, where a motion for judgment notwithstanding the verdict has been denied, whether there is any competent evidence reasonably tending to sustain the verdict. If the verdict be thus sustained, the judgment must stand.
The switching crew, of which plaintiff was a member at the time of the accident in April, 1922, was composed of 5 men — the locomotive engineer, the fireman, the conductor, Bichards the head switch-man, working next to the locomotive, and plaintiff, the rear switch-man, working at the opposite end of the train or string of cars. All 5 men were long experienced in the switching and handling of freight cars in the railroad business. On the morning of the accident, the locomotive was headed to the west. Attached to the tender of the locomotive were 7 flat cars, loaded with pulp logs to be delivered at or near the paper mills, on the log track east of where the locomotive was standing. The logs were not all of the same length. They were loaded in two tiers so that the ends of the logs at the end of the cars were not even, some extending out farther than others, and at each end there was a bare floor space from 4 to 6 feet wide. In moving to the log track, it was necessary for the locomotive to back up, pushing the 7 cars past the depot and the water tank. It was the custom to go onto the log track with a full tank of water. This custom was known to all members of the crew. The time of taking water was always determined by the engineer. There was a street crossing 3 carlengths east of the water tank. •
When there were but 3 cars, water was taken without uncoupling the locomotive, as this would not block the street, but with more
cars the engine would stop on the street, uncouple, and go back to tbe tank leaving the street open. When tbe accident happened, as hereinafter mentioned, tbe engine was 50 to 60 feet east of tbe street crossing.
When tbe locomotive started east with tbe 7 cars, plaintiff was standing on tbe car floor, at tbe east end of tbe most easterly car, 4 to 6 feet from tbe end and about 18 inches from tbe side, having a firm bold around a log that stuck out further than tbe other logs. Richards stood on tbe same floor on tbe north side and opposite plaintiff, but be, apparently in pursuit of bis duties as bead brakeman, climbed down on bis side before tbe accident happened. As tbe train was thus traveling at 5 to 6 miles per hour and before it reached tbe usual stopping place to separate tbe engine to go to tbe tank and leave tbe street crossing open, tbe engineer operated tbe locomotive so as to give a severe and unusual jerk, throwing plaintiff off ahead of tbe train, as it was backing up, and be says be landed on tbe ground 5 or 6 feet from tbe car in a doubled-up position, and as be was trying to get out of tbe way tbe train was burled toward him with awful force striking him in tbe back, knocking him down and passing two and a half cars over him, cutting off bis leg. Do tbe facts show actionable negligence?
Plaintiff was at tbe position on tbe car where bis duty required him to be. Tbe enginemen knew that somebody bad to be on that end of tbe car. It was plaintiff’s duty to be there to keep a lookout ahead. Tbe plaintiff was thrown off. This was done by tbe operation of tbe engine. Plaintiff claims that tbe engineer was negligent because of tbe failure to exercise that care which a person of ordinary prudence would exercise under tbe same circumstances. There is evidence to show that plaintiff was thrown off by an unusual and severe jerk caused by bringing tbe cars to a sudden stop when there was no necessity for it. It bad not yet reached tbe place where it was to stop for tbe engine to be uncoupled. Plaintiff testified: “It was a sudden and severe — just jerked tbe cars out from under me— tbe cars just bounded back.” He said be bad never experienced any such jerk before and that be bad ridden daily in tbe same place and in tbe same kind of work. He said be got a “terrific jerk.”
He said in switching work you do not get hard jerks like this kind of a one. He said: “You get hard jerks but not the kind that one was.” He said this jerk was not an ordinary jerk. The word “terrific” means terrible — appalling—it is akin to terror.
The mere proof of a severe jerk in the operation of a freight train is not sufficient to constitute actionable negligence. Perkins v. G. N. Ry. Co. 152 Minn. 226, 188 N. W. 564; Griffin v. Minn. Trans. Ry. Co. 94 Minn. 191, 102 N. W. 391; Beaton v. G. N. Ry. Co. 123 Minn. 178, 143 N. W. 324. But in the Griffin case the employe was not taken unaware. In the Beaton case the employe was not a member of the train crew and his presence was unknown to the train crew. The claim here that the engineer negligently applied the brakes so as to unusually jerk the train at a time and place where it was not necessary and not to be expected brings the case rather within the rule of LaMere v. Ry. Trans. Co. 125 Minn. 159, 145 N. W. 1068, Ann. Cas. 1915C, 667 and Fry v. M. St. P. & S. S. M. Ry. Co. 141 Minn. 32, 169 N. W. 147. In the Fry case the plaintiff was a head brakeman and he was riding on the rear end of an empty flatcar. Attached to the other end of the flatcar were 4 freight cars and a locomotive. He claimed that there came a sudden, violent, stopping jerk, which threw him off his balance and toward the west end of the car. The train was traveling backward to the west. That immediately another violent jerk came to the car which threw him onto the track 4 or 5 feet in front of the car. The train was moving about 4 miles per hour. That two wheels passed over him. That both jerks were occasioned by the engineer. In considering whether the evidence was sufficient to take the case to the jury this court said: [at page 35]
“If there were unusual jerks to the car and they were occasioned by the application of the air as claimed by plaintiff, then the defendant was chargeable with negligence. If there were not, then the plaintiff would have no cause of action. We have considered the testimony in connection with the surrounding circumstances, and are of the opinion that the same made an issue for the jury.”
We are of the opinion that the Fry case controls this case. There are other authorities to the same effect. Texas
&
Pac. Ry. Co.
v. Behymer, 189 U. S. 468, 23 Sup. Ct. 622, 47 L. ed. 905; Lancette v.
G.
N. Ry Co. 140 Minn. 488, 168 N. W. 364; Rothenberger v. Powers F. F. T. & S. Co. 148 Minn. 209, 181 N. W. 641; Choctaw, O. & G. R. Co. v. Holloway, 114 F. 458, 52 C. C. A. 260. The case of Austin v. Mobile & O. R. Co. 99 South. 3, is controlled by its own facts which showed a necessity for a sudden stop which injured the plaintiff.
We conclude that the evidence was sufficient to permit the jury to find actionable negligence, and that the court properly charged the jury that, while plaintiff assumed all of the risk ordinarily incident to the work he was called upon to perform, he did not assume the risks, if any such there were, arising from the negligence of the company or its engineer.
Affirmed.