Brown v. Milwaukee & St. Paul R. W. Co.

• Decision Date: 26 August 1875
• Citation: 22 Minn. 165
• Parties: ELLEN BROWN, Adm'x, <I>vs.</I> MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 165

22 Minn. 165

ELLEN BROWN, Adm'x, vs. MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

August 26, 1875.

Appeal by defendant from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial.

Bigelow, Flandrau & Clark, for appellant.

Brisbin & Palmer, for respondent.

CORNELL, J.

The record contains all the testimony and proceedings, and the main question is whether, in view of the uncontroverted facts, such a case of unmixed negligence on the part of defendant is disclosed as will justify the verdict. Defendant is charged with having so carelessly and unskillfully operated one of its trains, in crossing a public highway, as to have propelled the same against the intestate, thereby inflicting injuries resulting in his death. There is no averment nor claim that the injuries were wantonly, wilfully or intentionally inflicted.

The rule applicable to cases of this character, which we deem to be sound, is thus laid down by this court in its opinion in the case of Donaldson v. Milwaukee & St. Paul R. Co., 21 Minn. 293: "When there is no evidence whatever that the injury suffered was wilfully, wantonly or intentionally inflicted, to maintain the action, then, it must appear that the injury was occasioned by negligence on defendant's part, and it must not appear that there was contributory negligence on plaintiff's part." The court further say: "The question of negligence is ordinarily for the jury; but when there is no evidence that the injury was wilfully, wantonly or intentionally inflicted by the defendant, and the uncontroverted facts of the case show contributory negligence on the part of the plaintiff, it is proper for the court to rule, as a matter of law, that the plaintiff cannot recover."

The common law imposes upon every one in the full possession of his faculties, when approaching a known place of danger, the exercise of that degree of prudence, care and caution incumbent upon a person of ordinary reason and intelligence in like circumstances; and inasmuch as it may well be presumed that the instinct of self-preservation common to all must naturally prompt an ordinarily careful and prudent man to avoid an apprehended danger by a diligent use of the available means at his command, it has become settled that a failure in this respect, under ordinary circumstances when it is apparent that the danger might have been avoided if such means had been so used, is to be regarded as concurring negligence, and so declared by the court.

A railroad-crossing over a public highway, upon the same grade, is a place of danger, and is of itself a warning to one about to go upon it to be careful and vigilant, to the extent of his opportunity, in the use of his eyes and ears, to discover an approaching train in time to avoid it; and when the vision of the traveller is so unobstructed along the track that he can easily discover an approaching train, or the circumstances are such that his sense of hearing, if used, must apprise him of the same fact in time to escape it, it will be presumed, under ordinary circumstances, in case of collision, that he did not look or listen, or, if so, that he heedlessly disregarded the knowledge thus obtained. In either of these cases, as a general rule, no action can be maintained. Wharton on Negligence, §§ 382, 383, 384, and notes and cases cited.

In the case under consideration the injuries which resulted in the death of the intestate, Brown, occurred in a collision with a freight train of defendant, at a public highway crossing, known as Ferguson's crossing, while attempting to cross the track in front of the train. The accident happened on August 10, 1871, between 8 1-2 and 9 o'clock in the evening. Deceased resided some two and one-half miles south from the crossing, and had for over fifteen years, and his step-son, Anderson, was living with him. On that day they had been at work together in reaping at Ferguson's, a neighbor, some forty rods north from the crossing, and started for home in a lumber wagon. The team belonged to Brown and the wagon to Anderson, though the latter, as he says, "drove the horses that night." They were both perfectly familiar with the character of the crossing, the ground in its vicinity, and the highway and railroad leading to it, having frequently passed there before along the road they were then travelling. The train in question was a regular freight train, going south, and coming from the direction of Rosemount, a place distant north from the crossing from one to one and one-half miles. It was some ten minutes behind time that night, and hence was due at the crossing when they started from Ferguson's, a fact of which they were aware at the time. Eighty rods from the crossing, towards Rosemount, is a whistling post. From Rosemount to the crossing the railroad is straight, nearly an air line, and on a generally descending grade, with a cut between Ferguson's and the crossing of between three and four feet, and another, deeper, for a short distance above the whistling post, and about three-fourths of a mile from the crossing. Ferguson's house is distant in a direct line from the railroad track about fifteen rods, so that the distance between the highway and the track at that place is less than fifteen rods, and it becomes gradually less as the crossing is approached. From Ferguson's to the crossing, along the wagon-road, and between it and the railroad, was a fence about four feet high, made of rails a part of the way and of boards the rest. Between this and the railroad, for a portion of the way, there was a snow fence, running parallel with the track, and forty or fifty feet from it, made of boards, with intervening spaces varying from one to three inches in width, and of a height variously estimated by the witnesses from eight to fifteen feet. This fence intersected the highway fence at a point near the crossing. The distance from this point, via the highway, to the track is estimated by plaintiff's witnesses as follows: Mrs. Ferguson thinks it about forty feet,...