Wardner v. Great Northern Railway Company
| Decision Date | 08 December 1905 |
| Docket Number | 14,515 - (83) |
| Citation | 104 N.W. 1084,96 Minn. 382 |
| Parties | REDOR WARDNER v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Polk county to recover $40,000 for personal injuries. The case was tried before Watts, J., and a jury, which rendered a verdict in favor of plaintiff for $6,000. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and judgment ordered for defendant.
Contributory Negligence.
In an action to recover for personal injuries caused by a collision between plaintiff's team and a switch engine of defendant, at the crossing of defendant's railroad over Third street in Grand Forks, the evidence is examined, and held to show conclusively that plaintiff was guilty of contributory negligence.
M. L Countryman and A. C. Wilkinson, for appellant.
G. A E. Finlayson, Sorley & Bergman and Scott Rex, for respondent.
Action to recover for personal injuries alleged to have been caused by the negligence of defendant, in which plaintiff had a verdict in the court below, and defendant appealed from the order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
The injuries complained of by plaintiff resulted from his being struck by one of defendant's switch engines at a street crossing in the city of Grand Forks, North Dakota. As appears from the record, defendant has two parallel tracks at the point of the accident, running in a westerly direction from a bridge over the Red river, and crossing Third street, the southerly of the two being its main track, and the other a side track extending along the right of way, distant ten feet from the main track. Both tracks are on a level with the street, which is paved. On each side of the street buildings have been erected up to the right of way, so that the view of the track, either east or west, is obstructed until within a few feet thereof. The street is extensively used by the people, and the crossing is one attended with more or less danger. Defendant had provided gates, consisting of long bars, which were operated by a watchman in a tower situated a block west on the right of way, and are lowered automatically when a train approaches, and when down they effectually obstruct passage over the tracks. In connection with the gates is a gong, which sounds continuously while they are being lowered. On May 21, 1904, at about four o'clock in the afternoon, plaintiff was driving south on Third street, over which the railroad tracks so extend, with his team of horses hitched to an empty wagon. As he reached the main track he was struck by a switch engine coming from the east, and received the injuries of which he complains.
His cause of action is founded upon two alleged acts of negligence: (1) That the employees of defendant in charge of the switch engine gave no signal of its approach by ringing the bell, sounding the whistle, or otherwise; and (2) that the employees were guilty of negligence in running the engine at an excessive rate of speed, in violation of the ordinances of the city of Grand Forks. The defense was a denial of the acts of negligence charged, and that plaintiff was guilty of contributory negligence.
Numerous errors are assigned on this appeal; but, in the view we take of the case and the specific acts of negligence relied upon for recovery, it becomes necessary to consider only one question, viz., whether the court erred in refusing defendant's request for an instructed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law.
It conclusively appears from the evidence as presented by the record that at the time in question, and when plaintiff's team was at the gates on the north side of the right of way the watchman, having observed the approach of the switch engine from the east, commenced to lower the gates, in connection with which the gong attached thereto sounded in the usual manner. Plaintiff was driving his team at an ordinary walk, and was himself in possession of all his faculties. His hearing and eyesight were good. From the position he was in at this time his view along the track to the east was unobstructed for a distance of ninety feet. He testified that as he approached the crossing he looked to the east at this point and saw no approaching engine; that when he was within about twenty feet of the main track, then being on the side track, which was ten feet from the former, he again looked to the east, when his view was unobstructed for a distance of one hundred forty feet, and saw no engine approaching; and when within three feet of the main track he looked to the east a third time and discovered the engine almost upon him, and in attempting to cross the track was caught by the engine and injured. There was evidence tending to show that the engine was running at a rate of between five and twelve miles an hour; but, in view of the fact...
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