Evison v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 13 February 1891
• Court: Minnesota Supreme Court
• Parties: EVISON v CHICAGO, ST. P., M. & O. RY. CO.

45 Minn. 370

48 N.W. 6

EVISONvCHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Minnesota.

Feb. 13, 1891.

(Syllabus by the Court.)

1. The testimony of a fireman on a locomotive engine, whose duty it is to ring the bell when the engine is in motion, “that, although he had no independent recollection of ringing it on a certain occasion, yet it was his uniform and invariable habit to ring it, so that it had become second nature with him to do so, and that from these facts he was able to state positively that he did ring it on the occasion referred to,” is competent and sufficient evidence to justify the jury in finding that the bell was rung, notwithstanding the testimony of other witnesses that they were in position to have heard it if it had been rung, and that it was not rung.

2. An ordinance of the city of St. Paul limiting the speed of railway trains within the city limits to four miles an hour held, under the facts, to be unreasonable and void as applied to a certain part of defendant's road in the suburbs of the city.

3. Whether the reasonableness and validity of an ordinance, where it depends upon the existence of extrinsic facts as to which the evidence is conflicting, is a question for the court or for the jury, it is not error for the court to instruct the jury that it is unreasonable and void, when the evidence is conclusive.

Appeal from district court, Ramsey county; OTIS, Judge.

Williams & Schoonmaker, for appellant.

James H. Howe, S. L. Perrin, and C. D. O'Brien, for respondent.

MITCHELL, J.

This was an action to recover damages for personal injuries caused by the alleged negligence of the defendant. The plaintiff was riding with a friend in a sleigh on Phalen street, in the city of St. Paul, and as they were passing under the railroad of defendant, which crosses this street on a bridge 14 feet above the street grade, the horse was frightened by a passing train, and ran away, causing the injuries complained of. There was an ordinance of the city prohibiting the running of any railroad train within the limits of the city at a greater speed than four miles an hour, or without having and ringing a bell of sufficient size at all times while the train is in motion. Two, and only two, acts of negligence were charged against the defendant: (1) Running its train within the city limits at a greater rate of speed than allowed by the ordinance; and (2) not ringing a bell as required. It was conceded that the train was running at the rate of over 10 miles an hour, but there was no evidence that this was an improper rate of speed except the fact that it was greater than permitted by the city ordinance. When the testimony closed, the court instructed the jury that, “so far as the ordinance attempted to limit the speed of trains to four miles an hour, it was, in its application to defendant's road at the place of the accident, and east therefrom to the city limits, unnecessary, unreasonable, and void;” but he submitted the case to the jury, upon the evidence as to whether the bell was rung as required by the provisions of the ordinance in that regard, which he instructed them were reasonable and valid. The jury found a general verdict for the defendant, and also specially that the bell was rung. If the court was right in holding the ordinance void in so far as it limited the rate of speed, and if the special finding of the jury was justified by the evidence, that was the end of plaintiff's case, and the general verdict for defendant necessarily followed, and the question whether the court was right or wrong in his instructions as to the contributory negligence of the plaintiff or her friend, with whom she was riding, and who drove the horse, is wholly immaterial. The plaintiff and her friend testified that no bell was rung; that they were looking and listening for approaching trains, and heard no bell; and that they would have heard it if one had been rung. A third party who was also in the vicinity testified that he did not hear any bell. As against this negative testimony, the fireman on the engine, and whose regular duty it was to ring the bell, testified that, while he had no independent recollection of ringing the bell on that particular trip, yet, in accordance with a strict rule of the company, it had been his uniform and invariable habit to ring it, so that it had become second nature with him to do so, and from these facts he was able to state positively that he did ring it on this occasion. The engineer's testimony corroborated the fireman. We think this testimony was not only competent, but also sufficient to justify the special finding of the jury. While a witness can only testify to that which is within his personal knowledge, yet, if from his invariable and long-continued habit to perform a certain act in the line of his work, or from any other facts which aid or refresh his memory, he is able to testify of his own knowledge that he did the act on a particular occasion, the...