Faber v. St. Paul, Minneapolis & Manitoba Railway Company

• Decision Date: 26 October 1882
• Citation: 13 N.W. 902,29 Minn. 465
• Parties: Nicholas Faber v. St. Paul, Minneapolis & Manitoba Railway Company
• Court: Minnesota Supreme Court

13 N.W. 902

29 Minn. 465

Nicholas Faber v. St. Paul, Minneapolis & Manitoba Railway Company

Supreme Court of Minnesota

October 26, 1882

Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial. The case is stated in the opinion.

Defendant's fifth request, which was refused, was as follows: "In this case the undisputed facts are that until plaintiff got within sixty or seventy feet of the track, he could not see the approaching train, by reason of intervening buildings and the conformation of the ground; that after he got within sixty or seventy feet of the crossing, his view of the train was unobstructed; that at that time the coming train was in full sight, so that, if plaintiff had looked, he might have seen it, and, if he had stopped to listen, he might have heard it approach, even though the bell was not ringing; that the plaintiff knew of the existence of the railway track, and was familiar with the location and surroundings of the crossing, and that the railway was in frequent use. It was therefore his duty, before attempting to cross the track, and as soon as he got past the building, to both look and listen for the approaching train, and, if need be, to stop for that purpose; and also, in approaching the point where he could see the track, to keep his team at such rate of speed and in such control that he could stop it within the distance between where he could see the track and the crossing itself and if he failed in either of these particulars, he cannot recover."

Order affirmed.

R. B Galusha and Benton & Roberts, for appellant.

The city ordinance regulating the the speed of railway trains not having been pleaded, it should not have been admitted in evidence. City of Winona v. Burke, 23 Minn. 254; Garvin v. Wells, 8 Iowa, 286; Goodrich v Brown, 30 Iowa 291; Mooney v. Kenneth, 19 Mo. 551; Dillon on Mun. Corp. § 50; 1 Chitty on Pleading, 246; Gen. St. 1878, c. 66, § 110.

Plaintiff was guilty of contributory negligence. Wilds v. Hudson River R. Co., 29 N.Y. 315; Donaldson v. Mil. & St. P. Ry. Co., 21 Minn. 293; Brown v. Mil. & St. P. Ry. Co., 22 Minn. 165; Smith v. Minn. & St. L. Ry. Co., 26 Minn. 419; Salter v. Utica & B. R. R. Co., 75 N.Y. 273.

It was error to refuse defendant's fifth request. Plaintiff was bound to both look and listen, and to stop for that purpose, if necessary. Pierce on Railroads, 343; 1 Thompson on Negligence, 426; Tucker v. Duncan, 9 F. 872; Pa. R. Co. v. Beale, 73 Pa. St. 504; Allyn v. B & A. R. Co., 105 Mass. 77.

Baxter, Grethen & Penney and E. M. Wilson, for respondent, that the city ordinance was properly received in evidence, cited Massoth v. Delaware & H. Canal Co., 64 N.Y. 524; Beiseigel v. N. Y. Central R. Co., 14 Abb. Pr. (N. S.) 29; City of Rochester v. Montgomery, 72 N.Y. 65; City of Boston v. Worthington, 10 Gray, 497; Lane v. Atlantic Works, 111 Mass. 136; Hall v. Ripley, 119 Mass. 135.

OPINION

Dickinson, J. ^[*]

A recovery was sought in this action for injuries suffered by plaintiff from collision with a train of cars of the defendant, at its crossing of a street in the city of Minneapolis. The right to recover is based upon alleged negligence in the running of the train. The answer puts this in issue, and charges contributory negligence on the part of the plaintiff.

1. The evidence upon the trial tended to show that the train was running at the rate of from 12 to 15 miles an hour. The court received in evidence, against defendant's objection, an ordinance of the city which forbade the running of railroad locomotives or cars within the city at a rate of speed greater than six miles an hour. This is claimed to have been error, for the reason that the enactment or existence of the ordinance had not been pleaded. The objection cannot be sustained. The fact that the rate of speed at which the train was run was prohibited by the municipal law was competent evidence going to prove negligence, (Kelly v. St. Paul, M. & M. Ry. Co., ante, p. 1; Massoth v. Delaware & H. Canal Co., 64 N.Y. 524;) and, being evidence of the fact pleaded, it might be proved, although the existence of the ordinance had not been alleged in the complaint.

2. It is urged that the undisputed evidence shows that the plaintiff contributed to the occurrence of the accident by his own negligence in not looking seasonably for approaching trains. The issue as to plaintiff's negligence was submitted to the jury. The question now presented is, does it conclusively appear that the plaintiff did not look up the line of the track as soon as he could do so, or as soon as common prudence demanded? Two streets intersect nearly at right angles. Along over these the railroad is laid. The plaintiff, travelling upon the other street, was approaching the railroad crossing, and his view in the direction whence the train came was obstructed by buildings so that he could not have seen the cars until he approached the point of intersection of the streets, so that he could see along the track past a building standing at the corner or junction of the two streets. This building stood fifty-three feet from the centre of the railroad track. Plaintiff was driving his span of horses with a sleigh at a slow trot. The horses were ordinarily easily managed, and had never been afraid of railroad cars. The plaintiff did see the train, as the evidence shows, after he passed the obstruction at the street corner, and before his horses came to the railroad track, and tried to stop them, but they became frightened so that he could not control them, and ran across the track ahead of the locomotive, which struck the...