Kelly v. St. Paul, Minneapolis & Manitoba Railway Company
| Decision Date | 24 December 1881 |
| Citation | 11 N.W. 67,29 Minn. 1 |
| Parties | Patrick Kelly v. St. Paul, Minneapolis & Manitoba Railway Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial.
Upon a consideration of the whole case, we see no reason to set aside the verdict of the jury, and the order refusing a new trial is affirmed.
R. B Galusha, and Bigelow, Flandrau & Squires, for appellant.
C. K Davis, for respondent.
This action was brought to recover damages, upon the ground of negligence, for injuries to the person of the plaintiff, and to his horses and wagon, caused by a collision with a train of cars of the defendant, at the crossing of its line of road over Third street, in the city of St. Paul. The plaintiff having recovered a verdict, the questions are presented, upon this appeal from an order refusing a new trial, whether the defendant was shown by the evidence to have been chargeable with negligence in the premises, and whether it does not appear that the plaintiff was guilty of contributory negligence.
The street where the accident occurred is much travelled. The plaintiff was familiar with the premises, and with the manner in which defendant was accustomed to run its cars and trains and to guard the crossing as hereafter stated. Several tracks of the defendant cross the street at this point upon the grade of the street. Much switching is necessarily done in this place in making up trains and in distributing cars. Such work is done at all hours, and at times when regular trains are not running. The defendant was accustomed to have a flagman stationed at this crossing, to warn travellers of danger, between the hours of 7 in the morning and 6 at night. The accident occurred a little before 7 o'clock in the morning, when there was no flagman on duty at the crossing. A train of box cars was standing upon the easterly track, and extending both to the north and south of Third street, the train being separated at the crossing so as to leave a passage between the cars at the crossing of about 30 feet, as the evidence of several witnesses went to prove.
The injury was caused by a train, consisting of four cars in front of an engine, with other cars in the rear, running on the track next west of that on which the box cars were standing. According to the testimony of several witnesses it was moving at the rate of from 12 to 15 miles an hour although an ordinance of the city forbade the running of cars at a greater rate of speed than five miles an hour. It is necessary in switching to move the cars in front of the engine, as was done in this case. The plaintiff was upon Third street, going west, driving a span of spirited horses. The evidence tended to prove that, just before coming to the railroad crossing, he brought his team down to a walk, and had them under full control, but did not entirely stop; that he looked both ways and listened for any approaching train, but heard none, and that no bell was rung or other signal given; that he could not see the coming train because the train of box cars standing on the track shut it out from view. Plaintiff drove on the crossing between the cars standing on the first track, and, as he passed through the opening in that train, he saw the moving cars upon the second track approaching the street crossing. He whipped his horses and attempted to pass over before the train, but the hind end of his wagon was struck, causing the injury complained of.
The verdict necessarily involves a finding by the jury that the defendant was chargeable with negligence causing the injury complained of, and is sufficiently supported by the evidence. A finding by the jury that the train was run at an unlawful rate of speed, and that no bell was...
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