Beanstrom v. Northern Pacific R. Co.

• Decision Date: 12 May 1891
• Citation: 46 Minn. 193
• Court: Minnesota Supreme Court
• Parties: PETER BEANSTROM <I>vs.</I> NORTHERN PACIFIC RAILROAD COMPANY.

Page 193

46 Minn. 193

PETER BEANSTROMvs.

NORTHERN PACIFIC RAILROAD COMPANY.

Supreme Court of Minnesota.

May 12, 1891.

Appeal by defendant from an order of the district court for Otter Tail county, Searle, J., presiding, refusing a new trial after verdict of $700 for plaintiff, in an action for personal injuries at a highway-crossing of defendant's railroad.

John C. Bullitt, Jr., and Tilden R. Selmes, for appellant.

Chas. L. Lewis, for respondent.

MITCHELL, J.

1. The only question in this case is whether the evidence justified the jury in finding that the defendant was guilty of negligence, and that the plaintiff was not guilty of contributory negligence. We have no doubt as to the sufficiency of the evidence to justify the conclusion that the defendant was negligent. A careful perusal of it satisfies us that it was sufficient to warrant the jury in finding that the train which caused the injury passed the street crossing at the rate of 25 or 30 miles an hour, without giving any signal of its approach, except blowing a whistle at the "whistling-post," three-quarters of a mile west of the crossing, and again at the switch, which was about 115 rods or 1,900 feet west of the crossing. The evidence that no whistle was blown except at these points, and that no bell was rung, was not all negative testimony of the usual kind; for some witnesses testified that they heard the whistles at the points referred to, but did not hear any bell or whistle at any other time or place, except the blast given just as the engine struck plaintiff's wagon on the crossing. Had any other signals been given, they would have been more likely, in view of the reduced distance, to have heard them than those which they did hear. When it is considered that this crossing was on the principal thoroughfare of a village of 300 inhabitants, and that the opportunities of seeing or even hearing trains approaching from the west were greatly obstructed by a natural rise of the ground, as well as by buildings, and also by box-cars and piles of wood and ties, with which the railway company occupied a great part of its right of way, (200 feet wide,) we think it was fairly a question for the jury whether reasonable regard for the safety of those travelling the street would not have required some further cautionary signals nearer the crossing, especially in the case of a train which dashed through the village at so high a rate of speed without stopping.

2. While the evidence bearing upon plaintiff's contributory negligence is not so strong in favor of the verdict as that bearing upon defendant's negligence, yet we think it also fairly presented a question for the jury. There were three railway tracks at this crossing, — the main track, and a side track on either side of it, — the southerly one being eight feet distant from the main track. The railroad ran east and west, while the street (Main street, in the village of New York Mills) ran north and south. South of the crossing is a hill, the top of which is some 560 feet, and the bottom some 290 feet,...