Johnson v. St. Paul & Duluth R. Co.

• Decision Date: 05 December 1883
• Citation: 31 Minn. 283,17 N.W. 622
• Parties: JOHNSON, ADM'R, ETC., v ST. PAUL & DULUTH R. CO.
• Court: Minnesota Supreme Court

31 Minn. 283

17 N.W. 622

JOHNSON, ADM'R, ETC.,vST. PAUL & DULUTH R. CO.

Supreme Court of Minnesota.

Filed December 5, 1883.

Appeal from an order of the district court, Washington county.

Marsh, Searles & Nethaway, for respondent.

James Smith, Jr., for appellant.

DICKINSON, J.

Action by the administrator of the estate of a person deceased, to recover for the death alleged to have been caused by the negligence of the defendant. The defendant demurs to the complaint, upon the ground that it does not state facts constituting a cause of action. The negligence complained of is (1) that the defendant constructed and maintained its railroad through a street in the city of Stillwater in such a manner that the rails and a portion of the ties were above the surface of the street, which was done without authority of law, and constituted a nuisance, and rendered the highway unsafe and dangerous for public use; (2) that the defendant refused and neglected to keep a flagman at a designated point where the railroad intersected the street, to warn persons traveling upon the street, although it had been required so to do pursuant to the provisions of a city ordinance, which is pleaded in the complaint; (3) that the defendant “wrongfully and negligently” run a locomotive and cars along the street without any brakeman at the forward end of the train, whereby the horse after which deceased was riding was frightened and became unmanageable, causing the carriage to strike the elevated rails of the track, throwing her out and upon the track, where she was killed by the train.

It is further alleged that the death was caused by defendant's negligent conduct and omission in respect to the three particulars above specified. A railroad company laying its track in a public highway is under obligation to lay it in a proper manner, having regard to the general public use to which the highway is devoted. It may not so perform the work as to unnecessarily obstruct the highway or render it dangerous for public use. The complaint alleges the construction in this case to have been such as to render the highway dangerous for public use, and it does not appear that there was any necessity for such dangerous obstructions. It therefore shows defendant to have violated its duty in this particular. Assuming the ordinance to have been valid,-and no question is raised as to its validity,-it is apparent that the defendant disregarded its duty in neglecting to station a flagman...