50 N.W. 365 (Minn. 1891), Clark v. Northern Pacific Railroad Company

Citation:50 N.W. 365, 47 Minn. 380
Opinion Judge:Dickinson, J.
Party Name:John G. Clark v. Northern Pacific Railroad Company
Attorney:Wetherby, True & Warner, for appellant. Tilden R. Selmes, for respondent.
Case Date:November 25, 1891
Court:Supreme Court of Minnesota
 
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Page 365

50 N.W. 365 (Minn. 1891)

47 Minn. 380

John G. Clark

v.

Northern Pacific Railroad Company

Supreme Court of Minnesota

November 25, 1891

Appeal by plaintiff from an order of the district court for Crow Wing county, Holland, J., presiding, refusing a new trial after a dismissal ordered at the trial, in an action to recover $ 15,000 for personal injuries.

Order affirmed.

Wetherby, True & Warner, for appellant.

Tilden R. Selmes, for respondent.

OPINION

Dickinson, J.

The dismissal of the action on the case presented on the part of the plaintiff was justified for the reason that, by his own showing, he was chargeable with contributory negligence. The injury complained of was caused by his being struck by a snow-plough followed by a locomotive running south, as he was crossing the railroad track at a place which may be deemed to have been recognized by the defendant as a licensed crossing place over its road, and where, as may be assumed, the company was bound to exercise care to avoid injury to those who might travel there. It may be assumed that the defendant did not exercise the care required of it, in that no signal of the approaching engine and snow-plough was given. The plaintiff was a young man, 22 years of age, with unimpaired faculties. He was walking east on the travelled way or road, in the daytime. Although the wind was blowing, with snow in the air, he could see 35 or 40 rods. He was familiar with the locality, knew he was approaching the railroad crossing, and was expecting that a train might pass, coming from the south. The railroad runs in a straight line north and south, and the track is elevated some two feet above the surrounding country. The view of the railroad in both directions was obstructed by trees as one approached it travelling east, until [47 Minn. 381] the fence was passed which inclosed the railroad right of way, the distance of which from the track is not certainly shown, but appears to have been more than 20 and not more than 50 feet from the track. We will also make the further assumption, most favorable to the claim

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of the plaintiff, that, even after he came within the inclosing fence, his view of the track was so far obstructed that he could not have seen the approaching engine. As he came nearer to the track, his road lay between two piles of railroad ties, each of which was about 8 feet...

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