Bergman v. Northern Pac. Ry. Co.
| Decision Date | 03 August 1926 |
| Docket Number | No. 7403.,7403. |
| Citation | 14 F.2d 580 |
| Parties | BERGMAN v. NORTHERN PAC. RY. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Patrick J. Ryan, of St. Paul, Minn., for plaintiff in error.
Frederic D. McCarthy, of St. Paul, Minn. (B. W. Scandrett, of St. Paul, Minn., on the brief), for defendant in error.
Before BOOTH, Circuit Judge, and PHILLIPS and KENNAMER, District Judges.
This action was instituted to recover damages for the alleged wrongful death of John Bergman, who was killed on the 21st day of April, 1924, near Moose Lake, Minn. The facts are that the deceased was driving a Ford truck from St. Paul to Duluth with a load of furniture, and was accompanied by an assistant, a Mr. Woodward. The deceased was killed by reason of the defendant's train striking the Ford truck upon a railroad crossing where state highway No. 1 intersects the defendant company's railroad track. Bergman and his assistant were instantly killed and the only eyewitness to the accident was the engineer of the train which caused the death. The record discloses that at the time of the accident there was a high wind blowing and the snow was falling.
The complaint contained a number of different grounds of negligence, but only one was relied upon at the trial, which was the alleged failure of the engineer to sound the whistle and to ring the bell of the locomotive. Section 10,263, General Statutes of Minnesota 1923, requires the engineer of every locomotive to sound the whistle or ring the bell of the locomotive when approaching a crossing at a point not less than 80 rods from the crossing, and it further requires that the sounding of the whistle or the ringing of the bell continue until the locomotive has cleared the crossing. Upon the conclusion of the introduction of the evidence the defendant filed a motion for a directed verdict upon the ground that no negligence on the part of the defendant company had been shown; that the deceased, the driver of the Ford truck, was guilty of contributory negligence as a matter of law, and that under all of the evidence in the case the plaintiff was not entitled to recover. The motion for a directed verdict was sustained by the trial court upon the ground, as stated by the court, "that there has been no showing sufficient upon which to base a verdict that the whistle was not sounded at the time and place in question."
The only error presented is that the trial court erred in instructing the jury to return a verdict in favor of the defendant. An examination of the record shows that the only evidence presented by the plaintiff to establish the failure of the engineer operating the train to sound the whistle or ring the bell was the testimony of two witnesses, who, on the date of the accident, were driving an automobile in a northerly direction along the highway toward the intersection of the highway and the railroad track, and who had reached the crossing and were coming to a stop on the westerly side just as the train passed. As soon as the train had gone by the witnesses proceeded over the crossing and discovered the wrecked truck and the bodies of Mr. Bergman and Mr. Woodward near the track. The testimony of the two witnesses was to the effect that at the time and place of the accident the weather was stormy, the snow was falling, and the wind was blowing. Witnesses were driving a five-passenger touring car, upon which the storm curtains were attached, except on the left side of the automobile near the driver. The witness who drove the car testified that it was very difficult to see the road by reason of the accumulation of snow on the windshield of his car, and, in order to see any distance in front of the car, it was necessary for him to lean outside the car. It appears that the road upon which the witnesses were traveling ran parallel to the railroad track for some distance before turning into the crossing, and the road was within a few hundred feet of the railroad track. The touring car was being driven at a rate of about 25 miles per hour. Both witnesses testified that they...
To continue reading
Request your trial
-
Vigil v. Burlington Northern and Santa Fe Ry. Co.
...Norfolk & Western Railway Co., 4 Cir., 45 F.2d 532, certiorari denied 283 U.S. 824, 51 S.Ct. 347, 75 L.Ed. 1438; Bergman v. Northern Pacific Railway Co., 8 Cir., 14 F.2d 580. But the value of negative testimony depends upon the surrounding circumstances and conditions. And where it appears ......
-
Hampton v. Wabash R. Co.
... ... prevented the accident. McNeil v. Mo. Pac. Ry. Co., ... 182 S.W. 762; Armstrong v. Denver & R.G.R. Co., 195 ... Mo.App. 83, 190 S.W ... Norfolk & W.R. Co., ... 45 F.2d 532, certiorari denied, 283 U.S. 824; Bergman v ... Northern Pac. Ry. Co., 14 F.2d 580; Union Pacific v ... Gaede, 110 F.2d 931; Pere ... ...
-
Kerby v. Oregon Short Line Railroad Co.
... ... 107, 98 S.W. 509; Paris & G. N. R. Co ... v. Lackey (Tex. Civ. App.), 171 S.W. 540; Northern ... P. Ry. Co. v. Heaton, 191 F. 24; Grand Trunk Western ... Ry. Co. v. Reynolds, 175 Ind ... and who testify affirmatively and positively to the ... occurrence. (See Bergman v. Northern Pacific Ry. Co ... (C. C. A.), 14 F.2d 580, and the cases therein cited.) ... ...
-
Roth v. Swanson
...P., M. & O. R. Co. v. Kroloff, 8 Cir., 217 F. 525, 530; Chicago & E. I. R. Co. v. Sellars, 8 Cir., 5 F.2d 31, 33; Bergman v. Northern Pac. R. Co., 8 Cir., 14 F.2d 580, 581, 582; Pere Marquette R. Co. v. Anderson, 7 Cir., 29 F.2d 479, 480; Union Pacific R. Co. v. Gaede, 10 Cir., 110 F.2d 931......