Bengtson v. Chicago, St. Paul, Minneapolis & Omaha Railway Company
| Decision Date | 12 December 1891 |
| Citation | 50 N.W. 531,47 Minn. 486 |
| Parties | Anna C. Bengtson, Administratrix, v. Chicago, St. Paul, Minneapolis & Omaha Railway Company |
| Court | Minnesota Supreme Court |
A motion for a reargument of this case was denied January 7 1892.
Appeal by defendant from a judgment of the district court for Ramsey county, where the action was tried by Wilkin, J., a verdict of $ 1,000 rendered for plaintiff, and a motion for a new trial denied.
Judgment reversed.
J. H Howe and S. L. Perrin, for appellant.
G. J Lomen, for respondent.
Action for negligently causing the death of plaintiff's intestate. Deceased was working for defendant as a sectionman in its yard within the city of St. Paul. At the time of the injury of which he died he was at work upon one of the tracks, when an engine and tender of defendant, with some cars attached, came along the track. He endeavored to get out of the way by going to one side and stepping over three piles or logs, about thirty feet long and from one to two feet in diameter, lying side by side, parallel with the track, and directly opposite the spot where he was at work, the nearest about three feet from it. When he came to the piles he appears to have stumbled and fallen in such a way that his legs extended across the nearest rail, and the engine and tender passed over them. The negligence on the part of defendant consisted, as alleged, in running the engine and tender at a dangerous rate of speed, to wit, at a speed of more than four miles an hour; in not giving due and timely notice to deceased by sounding the whistle or ringing the bell, or otherwise, of the approach of the engine and tender; and by permitting the piles or logs to remain so near the track as to obstruct and interfere with his escape on that side from the track.
The evidence as to the sounding the whistle and ringing the bell was such that the jury could not reasonably find that the one was not sounded or the other was not rung in time. It is clearly evident that he heard the warning in time to escape, had it not been for his unfortunate stumble, when he attempted to step over or upon the piles. The proof of negligence in that particular failed.
The only attempt to prove that the engine was running at a dangerous rate of speed was by introducing an ordinance of the city prohibiting the running of railroad trains within the limits of the city at a greater rate of speed than four miles per hour. It may be doubted that the ordinance was intended to be operative, or could be sustained as operative within the yard of a railroad company, upon its own private property, within or over which the general public have no right of passage, as it has along or over a public street. Be this as it may, and conceding that proof that the engine and tender were running at a greater rate of speed than that allowed by the ordinance was evidence of negligence on the part of defendant, yet, if running trains in the yard at a greater rate of speed than four miles an hour was the defendant's mode of transacting its business, and that and the risks...
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