Denman v. St. Paul & Duluth R. Co.

• Decision Date: 24 February 1880
• Citation: 26 Minn. 357
• Parties: REASON DENMAN <I>vs.</I> ST. PAUL & DULUTH RAILROAD COMPANY.
• Court: Minnesota Supreme Court

Page 357

26 Minn. 357

REASON DENMAN vs. ST. PAUL & DULUTH RAILROAD COMPANY.

Supreme Court of Minnesota.

February 24, 1880.

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

Thos. Lecky and James N. & Ira W. Castle, for appellant.

James Smith, Jr., for respondent.

BERRY, J.

The plaintiff was run over by a train on defendant's railroad. He brings this action for damages, alleging that the defendant ran the train over him "negligently, carelessly, wantonly and recklessly, and without fault on his part." The defence is that the injury was the result of the plaintiff's own negligence in placing himself upon the track, and that defendant was guilty of no negligence or misconduct in the premises. The case went to trial before a jury, but at the close of the testimony for the plaintiff, the court, upon defendant's motion, dismissed it, upon the ground that plaintiff had not made out a cause of action. The question for us is, did the evidence reasonably tend, prima facie, to establish the plaintiff's alleged cause of action?

This is the state of facts which the evidence tended to establish: The plaintiff was travelling on foot, on a country road, crossing the defendant's railroad, and carrying a sack of provisions. After depositing his sack upon the westerly rail of defendant's track, which there ran about north and south, he sat down outside of the track, between two ties, at a distance of six or eight inches from the westerly rail, his head towards the track, his feet to the west, his elbow on the sack, his head on his hand, and "dropped off into a sleep." From his own testimony it appears that he had been drinking, and that he felt the influence of the liquor, and he also swears that he could not tell, when he sat down, if the train would hit him. How long he slept he is unable to say, as he recollects nothing which occurred after he fell asleep, except what occurred after he had been run over. The train ran over him, cutting off both his feet, and bruising his left side. How he came to be twisted round, to use his own language, into a position of body which would expose him to these particular injuries, he is wholly unable to explain. There is no evidence tending to show that the plaintiff was seen by any person upon the train, and none tending to show that the plaintiff's injuries were wilfully, wantonly, or intentionally inflicted. The testimony as to the locomotive whistle...