Mantel v. Chi., M & St. P. Ry. Co.

Citation21 N.W. 853,33 Minn. 62
PartiesMANTEL v CHICAGO, M & ST. P. RY. CO. MINNEAPOLIS STREET RY. CO. v SAME.
Decision Date03 January 1885
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the district court, Hennepin county.

Wilson and Lawrence, for respondents P. H. Mantel and Minneapolis Street Ry. Co. and Ell Torrence, for respondent, P. H. Mantel.

W. H. Norris, for appellant, Chicago, M. & St. P. Ry. Co.

GILFILLAN, C. J.

These are two actions, tried together in the court below, to recover for injuries caused by a collision at a street crossing of a street car belonging to the street railway company, driven by the plaintiff, Mantel, with a train of flat cars of defendant, by which Mantel and the street car and the horse drawing it were injured. The chief point here, as upon the trial below, relates to the alleged contributory negligence of the driver of the street car. The collision took place at the intersection of one of defendant's tracks with Cedar avenue, a street running north and south in the city of Minneapolis, along which and crossing the track ran one of the lines of the street-railway company. A train of 11 flat cars pushed by a locomotive was backing on defendant's track from the eastward, and had reached and was on the crossing of the two tracks when the street car coming from the north ran into it. Only one car ran on this street-car line, and it ran from some point north of defendant's line to a point on Cedar avenue a little over a block south, where it turned and went back, making 30 round trips, or crossing defendant's track 60 times a day. Mantel was, and for three or four weeks prior to the collision had been, the only driver of this car, so that for three or four weeks he had been in the habit of making the crossing 60 times a day. He must be presumed to have been, and his testimony shows that he was, perfectly familiar with the situation, with the dangers of the crossing, and the necessity of exercising care in approaching and crossing. Nothing but an almost inconceivable neglect on his part could have left him ignorant of those things. For two or three weeks there had been, besides other trains, regular and irregular, two flat or gravel car trains running on defendant's track, the latter crossing Cedar avenue in all 14 times a day between 7 in the morning and 6 in the evening.

The track of defendant crosses the avenue, and then curves to the north, until, at the distance of about a quarter of a mile, it runs nearly parallel to it. It runs on an embankment from a point 550 feet north-easterly from the crossing, and on that part the track itself can be seen from various parts of the avenue. There are some sheds intervening in such a way that at a point on the avenue 465 feet north of the crossing the south line of Twenty-eighth street, the nearest point at which the track can be thus seen, is 880 feet from the crossing, and to one going north on the avenue the track can be seen nearer the crossing as he goes further north, till at 1,200 feet north the track can be seen at a point 558 feet from the crossing. From the latter point to the crossing defendant's track runs through a cut varying from 4 feet 7 inches to 5 feet 6 inches in depth to a point 184 feet from the crossing, where it is 2 feet 8 inches in depth, and from there it lessens in depth to the crossing south of Twenty-eighth street. There are between the avenue and defendant's track buildings and fences...

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