Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company
|31 January 1908
|15,435 - (172)
|114 N.W. 1123,103 Minn. 224
|AARON ANDERSON v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY
|Minnesota Supreme Court
Action in the district court for Pope county to recover $20,500 damages for personal injuries. From an order, Flaherty, J. overruling its demurrer to the complaint, defendant appealed. Reversed and remanded.
Complaint in a personal injury action considered and held, that it shows upon its face that the defendant was guilty of negligence and that the plaintiff was guilty of contributory negligence as a matter of law, and, further, that it does not properly allege that the defendant was guilty of such wilful negligence as would entitle the plaintiff to recover irrespective of his contributory negligence.
"Wilful negligence," whereby liability is incurred irrespective of the plaintiff's negligence, is a failure, after, and not before, discovering his peril, to exercise ordinary care to prevent the impending injury.
Alternative Pleading -- Demurrer.
Alternative pleading is not permissible. Where the only effect of such allegations is to make the pleading uncertain, the remedy is by motion. Where, however, as in this case, the complaint alleges in the alternative two statements of fact, one of which is sufficient to constitute a cause of action and the other not, they neutralize each other, and demurrer will lie.
Alfred H. Bright, for appellant
Ludvig Arctander, for respondent.
This is an appeal from an order of the district court of the county of Pope overruling the defendant's demurrer to the complaint in this a personal injury action.
The here material allegations of the complaint, as summarized in the brief of counsel for the plaintiff, are these: "On the 18th day of October, 1906, respondent was severely injured by being run into by an extra or special train of appellant, consisting of a locomotive and a caboose, while he was standing on appellant's right of way at the village and station of Kensington, intently absorbed in watching some excavation processes carried on by appellant by a steam shovel, engine, and crew on its said right of way, immediately north of its main track, which latter ran through the village in an east and west direction.
It is too obvious for argument that these allegations charge the defendant with negligence. It is also clear from the complaint that the plaintiff, at the time he was struck and injured, was standing on the defendant's right of way and so near to the rails that the locomotive in passing struck him. He was then absorbed in watching the operations of a steam shovel, and oblivious and unaware of the approach of the locomotive, although his view to the west, whence the locomotive came, was unobstructed for a mile. He was not an employee of the defendant, nor was he working near the rails for any one, nor was he using the right of way for the purpose of going from the street to the depot, nor was he standing on the right of way at the invitation of the defendant, express or implied. He voluntarily located himself in a place of obvious danger for his own purposes, and while executing them he became oblivious to the approach of the locomotive behind him. Manifestly the complaint shows upon its face that the plaintiff was guilty of contributory negligence as a matter of law.
It follows, then, that the complaint does not state a cause of action, unless the effect of the plaintiff's contributory negligence is obviated by allegations showing that the defendant was guilty of wilful or wanton negligence. The pleader in drafting the complaint evidently appreciated this fact, and attempted to charge the defendant with wilful negligence. This presents the pivotal question raised by the demurrer: Does the complaint so charge the defendant? The allegation in this respect is that the servants of the defendant in charge of the locomotive, "although they knew, or in the exercise of ordinary care on their part could readily have known or ascertained," that the plaintiff was in an exposed and dangerous position, nevertheless failed to check the speed of the locomotive, or give any signal or warning of its approach. If the words we have italicized had been omitted from the complaint, it admittedly would have stated a cause of action in favor of the plaintiff, notwithstanding his own contributory negligence, because it would then allege that the defendant was guilty of wilful negligence in the premises.
It is, however, the contention of plaintiff's counsel that the defendant was guilty of such wilful negligence as would entitle him to recover, irrespective of his own negligence, if the defendant either knew or discovered, or might have known or discovered by the exercise of ordinary care, his perilous position in time to have avoided injuring him. This adds a material qualification to the doctrine of wilful negligence, as laid down by the decisions of this court, by adding thereto the alternative condition, "might have known or discovered."
This attempted qualification is not without the support of judicial authority in some of the states and of some text-writers. It would seem that an adoption of the qualification would in practice eliminate all distinction between ordinary negligence and wilful negligence, and permit a party guilty of contributory negligence to recover in all cases if his adversary failed to exercise ordinary care to discover whether he had been negligent and thereby placed himself in a perilous situation. However this may be, we adhere to the rule, established by the uniform decisions of our own court, which rejects the qualification and requires the exercise of ordinary care to avoid the threatened injury after, and not before, discovering the peril of the party guilty of contributory negligence; or, in other words, there is a well-de-fined distinction between ordinary negligence and wilful or wanton negligence.
Ordinary negligence is not actionable, if the...
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