Finley v. C. M. & St. P. Ry. Co.

• Decision Date: 07 February 1898
• Docket Number: Nos. 10,855 - (236).,s. 10,855 - (236).
• Citation: 71 Minn. 471
• Parties: ELIZA FINLEY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

71 Minn. 471

ELIZA FINLEY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.¹

Nos. 10,855 - (236).

Supreme Court of Minnesota.

February 7, 1898.

Appeal by defendant from an order of the district court for Freeborn county, Whytock, J., denying its motion for a new trial after a verdict for $1,100 in favor of plaintiff. Affirmed.

H. H. Field, W. E. Todd and H. C. Carlson, for appellant.

John A. Lovely, Henry A. Morgan and Clement S. Edwards, for respondent.

CANTY, J.

Plaintiff was riding with her husband in his wagon drawn by his horses, which he was driving. He sat beside her in the wagon seat, and, as he attempted to drive across the railroad track of defendant on a grade crossing, the wagon was struck by defendant's engine and plaintiff was thrown out and injured. She brought this action to recover damages for the injury, on the trial had a verdict, and from an order denying a new trial defendant appeals.

The collision occurred at the village of Alden, in Freeborn county. The wagon road extends north and south, and the railroad east and west, through the village. Plaintiff and her husband resided six miles south of the village. He hitched up his horses that morning to go to town on business, and she asked permission to ride with him, for the purpose of going to see the sick child of her daughter. As they approached the crossing, they were traveling north, and the train which struck the wagon came from the east.

1. To the following questions submitted to the jury, they made the following answers:

"(1) Q. Was a long blast of the whistle sounded at least eighty rods from the crossing? A. Yes. (2) Q. Was the bell rung continuously from a point at or near the switches until the accident occurred? A. No. (3) Q. At what rate of speed per hour was the train running when it reached the crossing where the accident occurred? A. Twelve miles per hour."

Whether the answer to the second question is a sufficient finding that defendant was negligent, we need not consider. If it is not, the general verdict is a sufficient finding to that effect. As to whether the bell was rung continuously or at all while the engine was approaching the crossing, the testimony was very conflicting, and in our opinion the verdict is sustained by the evidence.

2. It is contended by appellant that the evidence shows conclusively that plaintiff and her husband were both guilty of contributory negligence, in failing to look and listen before attempting to cross the railroad track, that his negligence is imputable to her, and that for these reasons the evidence does not sustain the verdict.

It appears by the evidence that the road approaching the crossing is level for 750 feet from the crossing, and of the same level as the crossing; that the only obstructions to the view when looking east along this 750 feet of the road or street were four houses and a mill. The mill fronts on the street, and is 30 feet wide. The main part of it is 60 feet high and 60 feet long, adjoining the end of it on the east is an engine and boiler room 25 feet long and 20 feet high, and immediately east of this are coal sheds and sale sheds; making a continuous row of buildings 150 feet in length along the right of way. These buildings extended parallel to the main track, and were 50 feet from the center of that track. Between these buildings and the main track was a spur track, and between the spur track and the main track was a hand-car and tool house, the dimensions of which were 12 feet north and south, 10 feet east and west, and it was 10 feet high. It stood about 14 feet from the street, and equidistant between the mill and the main track.

On the east side of the highway, and 125 feet south of the mill, stood a building known as the "Paint Shop." South of this, and at intervals, along the east side of the rest of this 750 feet of road, were two or three other buildings. At a point 1,200 feet east of the crossing, the railroad track enters a cut. Three hundred feet further east, this cut is deep enough to hide completely from view an approaching train. A person going north on the 125 feet of highway between the paint shop and the mill could see the train as it emerged from this cut, and the train would remain in full view until it passed behind said row of buildings, consisting of the mill, engine house, coal and sale sheds, 150 feet...