O'Connor v. Chicago, M., St. P. & P. Ry. Co.

• Decision Date: 08 December 1933
• Docket Number: No. 29626.,No. 29638.,29626.,29638.
• Citation: 190 Minn. 277,251 N.W. 674
• Parties: O'CONNOR v. CHICAGO, M., ST. P. & P. RY. CO. et al.
• Court: Minnesota Supreme Court

251 N.W. 674

190 Minn. 277

O'CONNOR v. CHICAGO, M., ST. P. & P. RY. CO. et al.

No. 29626.

No. 29638.

Supreme Court of Minnesota.

December 8, 1933.

Appeal from District Court, Swift County; G. E. Qvale, Judge.

Action by Annie O'Connor, special administratrix of the estate of Timothy O'Connor, deceased, against the Chicago, Milwaukee, St. Paul & Pacific Railway Company and the Great Northern Railroad Company. From an order denying its motion for a new trial, the Great Northern Railroad Company appeals, and from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial, the Chicago, Milwaukee, St. Paul & Pacific Railway Company appeals.

Orders affirmed.

F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, and Daly & Barnard, of Renville, for appellant Chicago, M., St. P. & P. Ry. Co.

Frank E. Wright, of Appleton, A. L. Janes, of St. Paul, and Paul J. McGough and Nathan A. Cobb, both of Minneapolis, for appellant Great Northern Ry. Co.

Davis, Michel, Yaeger & McGinley, of Minneapolis, and John I. Davis, of Benson, for respondent.

HOLT, Justice.

Action for wrongful death caused when a passenger train of the defendant Great Northern Railroad Company collided with a freight train of the defendant the Milwaukee Railway Company, at Lurgan crossing, about four miles north of Wahpeton, N. D.; the decedent being the fireman on the locomotive of the Milwaukee Road. There was a verdict against both defendants. The Great Northern Railway moved for a new trial on the minutes of the court, and appeals from the order denying its motion. It did not make the Milwaukee Road a party to the appeal. The latter, on a settled case, moved in the alternative for judgment notwithstanding the verdict or a new trial, and appeals from the order denying the motion. The Great Northern Railway is made a party to this appeal.

For brevity the two defendants will be designated as the Great Northern and the Milwaukee. The Great Northern track runs practically south from Fargo to Wahpeton. The Milwaukee track to Fargo is east of the Great Northern track out of Wahpeton, until 3.8 miles north thereof where, at an angle of 31 degrees, it crosses the Great Northern at what is known as the Lurgan crossing. Since 1923 the railroads have run their trains over this crossing in accord with the electrically operated automatic signal system installed and maintained under their agreement. The signal is on a tower or mast, and is given by means of an arm which moves from a horizontal position to one of 45 degrees on one road and 90 degrees on the other. When so moved from horizontal upwards it means for the train approaching to proceed over the intersection. The electric current has to be applied as the force to raise the arm. When the current is cut off the arm by gravity drops to horizontal. In horizontal it means to stop short of the crossing. This tower or mast having the movable arm is called the home signal. On both roads, as a train approaches the crossing from either direction, the mast or home signal is found on the right-hand side of the track about 600 feet, in round numbers, before reaching the crossing. On both roads, about a mile in each direction from the crossing, are contact points so arranged that from the time a train strikes that point or area the electric current is turned on to the home signal ahead and its arm is raised, but the current is cut off from the other three home signals so that no train approaching them could get a proceed signal. When the train which made the contact reaches its home signal the arm drops to horizontal, and neither it nor any of the other three home signals can be raised until the first train is past the crossing. On the Great Northern the distant signal is a part of its block system and corresponds to its contact point. The Milwaukee has its distant signal 3,636 feet from the crossing. This signal serves only to remind the engineer that the home signal is near.

On January 30, 1932, a Milwaukee freight train of 11 cars approached the Lurgan crossing going towards Fargo at a speed of 18 miles per hour and was struck back of the cab by a south-bound locomotive of the Great Northern, hauling a passenger train. The time of collision was 5:54 p. m. The temperature was 18 degrees below zero. The atmosphere was clear, and objects visible for a mile or more. The Great Northern train was known as the Empire Builder. The headlights and the lights in the cars were lit. The train was behind time and was running not less than 40 miles an hour when it struck the Milwaukee. At that speed it could not be stopped in less than 1,500 feet. The freight train could have been stopped at its speed in about 200 feet. The fireman on the Great Northern was killed. Both the engineer and the fireman, O'Connor, the only persons on the locomotive of the Milwaukee, were killed. The engineer of the Great Northern, Mr. English, testified. In his cab he could not see the approaching freight train. His fireman was attending to the fire when the Great Northern home signal was passed. O'Connor from his position in the cab could have no view of the approaching Great Northern train. The engineer of the Milwaukee could have had a view from his cab. The temperature was severe enough to frost the windows on the locomotives. It appears that the signal system was installed and maintained by the Great Northern. Periodic inspections were made by both companies. Plaintiff's right of recovery against either railroad cannot in our opinion be affected by any agreement existing between the railroads with regard to installation, maintenance, or inspection of the automatic signal system, and such agreement is laid out of view. It does, however, appear that, when the signal system was put into operation, the railroads agreed that freight trains should not cross Lurgan crossing at a greater speed than 18 miles and passenger trains at a greater speed than 25 miles an hour.

The appeal of the Great Northern challenges two rulings excluding testimony.

One Laib, the news agent on the passenger train, was called by the Great Northern and was asked to state what the engineer, Mr. English, said when seated, hatless and nervous, in the baggage car four or five minutes after the collision. What he said was not in response to any question, but was said in the hearing of Laib and others. The Great Northern offered to show that English said: "I wonder what the Milwaukee was doing out on the crossing because I had a clear block." On the objection of the Milwaukee the objection was sustained. English had testified fully and had been cross-examined by both plaintiff and the Milwaukee as to what he saw and did on approaching the crossing. The proffered testimony was to corroborate English. It is contended the statement was admissible as res gestæ. It related to a past event. There had been some time for reflection. It was a self-serving statement so far as the Great Northern, the employer of English, was concerned. It was for the trial court to say whether the statement came within this definition: "The utterances must spring out of the transaction, must be spontaneous, generated by an excited feeling which extends without break or let down from the moment of the event to the moment of the utterance and under such circumstances as to reasonably preclude the idea of calculation of deliberate design." Clark v. Davis, 153 Minn. 143, 190 N. W. 45, 46. The trial court must determine whether the declarations are admissible as res gestæ. O'Connor v. Chicago, Milwaukee & St. Paul Ry. Co., 27 Minn. 166, 6 N. W. 481, 38 Am. Rep. 288; Lambrecht v. Schreyer, 129 Minn 271, 152 N. W. 645, 646, L. R. A. 1915E, 812; Roach v. Great Northern R. Co., 133 Minn. 257, 158 N. W. 232, 234. In the Roach Case it is said: "In reviewing the trial court's ruling this court defers to its determination of the preliminary facts bearing upon the propriety of receiving the testimony. To this extent its admissibility is within the sound judgment of the trial court." In Lambrecht v. Schreyer, supra, it is said: "If the statement is made under circumstances bringing it within the rule of res gestæ, it is competent whether favorable or unfavorable to the person making it, since it is received, not as an admission, but as testimonial evidence." While this is so, the situation here is much like the one in Perkins v. Great Northern R. Co., 152 Minn. 226, 188 N. W. 564, 567, where the plaintiff tried to corroborate his testimony by testifying to declarations he made when aid arrived after his injury. There the court said: "So far as we have discovered, it has never been held that a party may bolster up his case by testimony that he made a self-serving declaration so closely connected with an injury he received as to be part of the res gestæ, and a court should be reluctant to adopt a rule of evidence which would tempt a party accidentally injured to make evidence for himself. * * * In no state has the res gestæ doctrine been extended farther than in Minnesota. The extension now proposed would not serve the purpose of getting at the truth, which is the sole end towards which all rules of evidence should be directed." Here English was the servant of the Great Northern. He had testified that the signal was for him to proceed. There was no good reason why this testimony should be corroborated by proof of a declaration by him to the same effect made several minutes after the collision. The situation here is more like it was in Schendel v Chicago, Milwaukee & St. Paul R. Co., 158 Minn. 378, 197 N. W. 744, than in Linderoth v. Kieffer, 162 Minn. 440, 203 N. W. 415. We deem the ruling not error under the situation shown.

The other error assigned upon the rulings is the exclusion of the conversation between the Great Northern fireman, killed, and English regarding the signal; it appearing that it was the practice of the enginemen to repeat the proceed...