Bowers v. Chi. M. & St. P. Ry. Co.
| Decision Date | 10 January 1919 |
| Docket Number | No. 21029.,21029. |
| Citation | 141 Minn. 385,170 N.W. 226 |
| Parties | BOWERS v. CHICAGO. M. & ST. P. RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Pipestone County; E. C. Dean, Judge.
Action by Lena Bowers, as administratrix of the estate of Clifton Bowers, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff, and, from an order denying its motion in the alternative for judgment non obstante or a new trial, defendant appeals. Order denying the motion for new trial reversed, and a new trial granted.
Syllabus by the Court
As the facts are presented by the record, it cannot be held that a person who walked upon a railroad track, laid along a public street, was guilty, as a matter of law, of contributory negligence in failing to observe a string of cars that moved up against him from behind.
The error in admitting a town plat of Sioux City, Iowa, purporting to be certified to by an officer of that state, the same not being authenticated as provided by the federal statute, and there being no foundation laid for its introduction under our practice, was without prejudice, for the evidence received without objection proved all that the plat tends to prove.
The eyewitness of the accident observed the conduct of the person killed by the alleged negligence of the defendant for so few moments before the accident that an instruction was not warranted that no inference of due care for his own safety could be considered by the jury.
It was prejudicial error to refuse to withdraw from the jury charges of negligence of which there was no proof, in view of the fact that the court read to the jury the complaint wherein several negligent acts were charged, only one of which was attempted to be proved.
Other errors not likely to occur on another trial do not merit consideration. John N. Hughes, of Cedar Rapids, Iowa, C. T. Howard, of Pipestone, and F. W. Root, of Minneapolis, for appellant.
Tom Davis and Ernest A. Michel, of Marshall, for respondent.
Defendant appeals from an order denying its motion, in the alternative, for judgment non obstante or a new trial.
Plaintiff's intestate, Clifton Bowers, and a companion, were walking along one of defendant's railroad tracks in Sioux City, Iowa, about 6:30 p. m. August 13, 1914, when a string of box cars, pushed by a locomotive in the direction in which the men were walking, overtook and killed them. The evidence presents this situation: From east to west the streets are named, in their order, Iowa, Court, Virginia, Jennings, Jones, and Jackson. From north to south are Third, Second, and First streets. Defendant's freighthouse is a narrow building extending from Jackson to Virginia streets along Second street, its south wall being about 40 feet north of the north boundary of Second street. The territory south of the freighthouse was occupied by parallel railroad tracks, laid as close together as feasible for safe railroad operation. Of these tracks defendant owned the first five south of the freighthouse, the track upon which Bowers was killed being the most southerly of the five, and known as track No. 1. A cross-over track, with proper switches at about Court street, served for the purpose of moving cars from the three most northerly of defendant's tracks to track No. 1. At the time in question, the switching crew had occasion to move some box cars from the said three northerly tracks onto track No. 1, and then for a further westerly movement on said track. The engine went in on one of the northerly tracks, coupled onto a string on nine box cars, pulled them east over the switch in Court street, thence pushed them west over the cross-over track onto track No. 1, leaving them so that the front or most westerly car came nearly as far west as Jennings street. The engine then went back east and repeated the operation, bringing out seven or eight more box cars and pushing them against the nine first set out, coupling the two strings together, and then starting to push the whole string further west. The testimony of the train crew, and one of the crew was called by plaintiff, tends to show that after the two strings were coupled together the train did not move west to exceed two car lengths when it was stopped because the easterly trucks of the third car from the west end derailed, and then the bodies of plaintiff's intestate and his companion were discovered under the fourth car from the west end. Whether the derailment resulted from running over the men is not made to appear. The inevitable conclusion from this testimony would be that the two men were between two of the cars when the coupling of the two strings took place, or when the forward or westerly movement of the whole train was begun; and, if that were the only evidence, defendant should have prevailed. But plaintiff also produced a witness who saw the accident. His testimony was that he was walking south two or three blocks to the west of the place of where it occurred, and, as he approached track No. 1, he saw two men coming toward him walking between the rails of the track, and perhaps two rods in front of the box cars moving westerly; that the men appeared to look in the direction in which they were going; that the box cars overtook and ran over them within a few seconds. He was unable to say what the speed of the cars was, and could not swear that it was over four miles per hour. All the other testimony was that it was less. From the situation of this witness it is apparent that his estimate of the speed, and of the distance between the cars and the men, was very unreliable, and he did not profess to give either except as he was pressed on cross-examination for his best judgment.
The first contention is that defendant was entitled to a directed verdict, and should now have judgment, for the reason that Bower's contributory negligence appears as a matter of law. Cases are cited to the effect that one who, in crossing a railway track, fails to use his senses to discover the approach of a train of cars, in guilty of negligence. Such is the law. But we are not prepared to hold that one who walks upon a railway track laid along a public street is, as a matter of law, negligent if he fails to discover a train overtaking him. There was evidence from which the jury could find that the track upon which the accident occurred was laid along a public street, and that a great deal of public travel passed over and along the same. The acts or omissions that would constitute negligence on the part of one crossing a railway track at a street intersection do not necessarily so show where he is passing along a railway track laid lengthwise in a public street. In the former case a mere glance right and left suffices for safety. But where the travel is along a street, occupied its whole length with railway tracks, it would be quite another thing to discover by the sense of sight alone the approach of cars from the rear. In Peaslee v. Railway Transfer Co., 120 Minn. 347, 139 N. W. 613, consideration was given to the fact that the railway tracks upon which the party was injured were laid along a street. So, also, in Southern Ry. Co. v. Caplinger's Adm'r, 151 Ky. 749, 152 S. W. 947, annotated in 49 L. R. A. (N. S.) 660 and 681. In Chesapeake & O. Ry. Co. v. Booth, 149 Ky. 245, 148 S. W. 61, where the injured party walked along the rail of the track in...
To continue reading
Request your trial