Donaldson v. Milwaukee & St. Paul Railway Co.

• Decision Date: 11 January 1875
• Court: Minnesota Supreme Court
• Parties: ISAAC N. DONALDSON <I>vs.</I> MILWAUKEE & ST. PAUL RAILWAY COMPANY.

21 Minn. 293

ISAAC N. DONALDSONvs.

MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

January 11, 1875.

Appeal by plaintiff from an order of the court of common pleas for Ramsey county, Hall, J. presiding, refusing a new trial.

W. A. Gorman and I. V. D. Heard, for appellant.

Greenleaf Clark and Gordon E. Cole, for respondent.

BERRY, J.

At the close of the plaintiff's case upon the trial below, the court, on defendant's motion, dismissed this action, upon the ground that the plaintiff had failed to establish his right to recover. As in determining the propriety of the dismissal, we are to assume the truth of whatever the testimony legitimately conduces to prove, (Ernst v. H. R. R. Co., 35 N. Y. 9, 25,) the following statement is made, upon that basis, as embodying the substantial and material facts to be considered. The plaintiff brings this action to recover for injuries resulting from his being struck and run over by a car upon defendant's railway. The accident occurred at Dundas, (a village of four or five hundred inhabitants, in Rice county,) on January 31, 1872, between one and two o'clock P. M. Defendant was at that time a little over thirty years of age. He had resided in Dundas since May, 1871. His business was that of a country merchant, selling goods in a store within a short distance of the scene of the accident, and he was also engaged in procuring wood and ties for defendant. The accident occurred at a point on the track about half way between two street-crossings, and about two hundred feet distant from each. The railroad track between these crossings, although no part of any street or highway, had been commonly and frequently used by foot travellers, (and by the plaintiff among others,) especially in times of snow or mud. To this practice it does not appear that any objection was made. One of the defendant's freight trains, coming from the south, became separated into two parts, one part consisting of the locomotive, tender, and several freight cars, and the other part of several freight cars and a caboose. How or where the separation occurred, does not appear, though it does appear that it was observed by one of the witnesses when the train was from a third to a half of a mile south of the place of the accident. From south to north, in the direction in which the train was moving, there was a heavy down grade. The train was running at a speed of fifteen to twenty miles an hour, and having no freight for Dundas, and no business at the station there, and being behind time, had no occasion to stop there or to slack its speed. A second train was following the train spoken of, at a distance of about half a mile. The accident is described by Stebbins, one of the witnesses, as follows, viz: "After leaving the store, we (himself and the plaintiff) went up street to the railroad track on the main crossing; when we arrived there, I looked up the track south, and saw a locomotive coming; told Donaldson that there was a train of cars coming. I saw the train coming as we arrived at the track; wood was piled on both sides of the track. Saw a train of cars coming from Faribault, going north toward St. Paul. We walked along the track, and we then stepped off and waited for the train to pass; we walked to the edge of a deep cut or steep grade, and stopped until the train had passed; we saw we could not cross the gulf without going back on the track; we stopped and remained there until the cars had passed; as the train passed, we saw a woodsawing machine on the cars: Donaldson said something, talking and looking in the direction of the train; as I was looking at the train, I saw Donaldson on the track; I had to take two steps to get back on the track, and Donaldson had to take only one; as I stepped off with my left foot, I saw the train coming; I yelled at Donaldson, and as I yelled at him, the cars struck him as quick at that, (witness explains his idea by motion with his hand.) They had some machinery on the train (woodsaw) and we were looking at that; just as I was calling him, and tried to direct his attention to the coming of the cars, the cars struck him, and dragged his body off the track, his limbs still remaining across the rail; it drew his body off the track, and his limbs remained on the rails; I sprang then to him, and pulled him off the track; the front trucks ran over his limbs, and I pulled him off from the track." In answer to the question, "How long was it from the time when Donaldson stepped on the track, and the time when the accident happened?" this witness (Stebbins) said, "It happened in a moment." On cross-examination, the same witness testified that when he and the plaintiff stepped on the railroad track, he saw the cars coming, from half to three-quarters of a mile up the track; that he walked down the track, with his back to the train, two hundred feet, to the point...