Campbell v. City of Stillwater
| Decision Date | 18 July 1884 |
| Citation | 20 N.W. 320,32 Minn. 308 |
| Parties | Hugh Campbell v. City of Stillwater |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Washington county, McCluer, J., presiding, sustaining a demurrer to the complaint.
Order reversed.
J. N. & I. W. Castle, for appellant.
A. E Macartney, for respondent.
According to the complaint, the railway company, with the consent and permission of the defendant, laid its track and operated its railroad along-side of and in places lengthwise upon one of the streets of the city. The track was so constructed that a carriage driven even with care on or over it would be in great danger of being overturned and broken. Without reference to the danger from passing cars and engines, it was a dangerous place for a horse with a carriage to go. There was no fence or barrier of any kind between the part of the street occupied by the track and the part not occupied by it, to prevent horses running over to and upon the track. As the plaintiff, in his buggy, was driving his horse along the street near the said part of it, his horse was suddenly frightened by a car moving along the track, and notwithstanding the efforts of plaintiff to prevent him, ran upon the track where it was laid on and along the street overturned the buggy, and injured plaintiff.
The court below bases its decision sustaining a demurrer to the complaint upon two grounds, the first being in substance and effect this: that the portion of the street upon which the track was laid was practically vacated, and so removed from the care, control, and supervision of the city, by the permission given to the railway company to lay the track upon it; the court apparently assuming that the permission given had the same effect as to the use and control of the street as would its appropriation by the company under condemnation proceedings. To support this proposition, reference is made to Gen. St. 1878, c. 34, § 47, which authorizes a city or other municipal corporation and a railroad company to agree upon the manner and terms and conditions upon which the latter may use a street or part of a street when it becomes necessary to so use it. It may be conceded that this will authorize an agreement that will practically vacate the street or part of the street to be so used, and cast on the company the exclusive care and control thereof, relieving the city from all responsibility therefor. It is also possible though the case does not call for a decision on it, that they may so agree as to devolve on the company the exclusive duty of protecting the public in the use of that part of the street not devoted to the use of the company from the dangers that it may become subject to by reason of a part of it being used for railroad purposes. Thus, in this case, the track is laid upon and along the east side of the street for a distance of 300 yards. On the west side there is, because of a high bluff and houses, no way to turn off from it. Horses are liable to become frightened and unmanageable by the moving of engines and cars along the track. That part of the street is thereby rendered dangerous, one of the most obvious dangers being -- in the absence of any fence or barrier along the track to prevent it -- that, when frightened and unmanageable, a horse will run upon the track, and, by reason of its condition, overturn and break the vehicle, and injure those who may be in...
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