Franklin v. Minneapolis, St. P. & S. S. M. Ry. Co., 27657.

Decision Date14 March 1930
Docket NumberNo. 27657.,27657.
Citation229 N.W. 797,179 Minn. 480
PartiesFRANKLIN et al. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. et al.
CourtMinnesota Supreme Court

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Mae Franklin, as mother and natural guardian of Jack Franklin, a minor, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Tautges, Wilder & McDonald, of Minneapolis (Michael Levin, of Milwaukee, Wis., of counsel), for appellant.

John E. Palmer, James L. Hetland, Cobb, Hoke, Benson, Krause & Faegre, and Paul J. McGough, all of Minneapolis (Schoetz, Williams & Gandrey, of Milwaukee, Wis., of counsel), for respondents.

OLSEN, C.

Action by Mae Franklin, as mother and natural guardian of Jack Franklin, her minor son, to recover damages for personal injuries claimed to have been caused to the minor by negligence on the part of the defendants. There was a trial by jury. The jury failed to agree, and thereafter, on motions by the defendants, the court ordered judgment in favor of each defendant. Plaintiff appeals from the judgment.

Jack Franklin, a boy about 15½ years of age, was injured in a collision between a truck, wherein he was riding, and a freight train of the defendant railway company. The accident happened on August 22, 1927, in the state of Wisconsin, in open level country where a rural highway, known as No. 45, crosses the railway track. The railway runs east and west. Highway No. 45 runs north and south. Running east and west, paralleling the railway and at a distance of about 100 feet north thereof, is the paved state road No. 10. Defendant Ben Dick, residing at Marshfield, Wis., owned and operated a truck for commercial purposes. At the time of the accident, he was hauling boxes or containers to a cheese factory out in the country. He is an uncle of Jack Franklin, and the boy was visiting and staying with him, and had been there since June 4th. The evidence is in dispute as to whether the boy was employed by and receiving wages from his uncle. It is undisputed that the uncle had given the boy some small compensation or gifts in addition to board and lodging; that the boy had accompanied him on some ten or twelve similar trips out in the country, upon which trips railroads were crossed; that he assisted his uncle in handling boxes and other freight transported whenever required or requested; that he had been instructed by his uncle to watch out for trains at railroad crossings, that that was his job; and that he had watched out for trains on such trips. On the morning of the accident the boy and his uncle were traveling east on No. 10, parallel to the railroad, and had been so traveling for some 5 or 6 miles. Dick was operating the truck. The two were sitting on the seat in the cab of the truck, the boy on the right, the side towards the railroad track. The window of the cab next to the boy was open. Road conditions were good; the weather had been misty, but had brightened up before the accident, and visibility was good. There was nothing between the highway and the track to obstruct the view. So traveling, they came to where highway No. 45 crosses state highway No. 10 and then goes south across the railroad track. On approaching the turn, Dick slowed down to about 15 or 20 miles an hour. He then turned south onto No. 45 to cross the railroad track, and the truck, back of the cab, was struck by a freight train traveling east. The distance from the center of state highway No. 10 to the center of the railroad track at this point is 110 feet. The rate of speed of the truck while traveling on No. 10 was 25 to 30 miles an hour. The speed of the train is given as about 30 miles an hour. For about 2 miles the truck had been traveling some 500 or 600 feet ahead of the train. At the railroad crossing, there was the ordinary large sign to look out for the cars. As they turned to cross the track, the boy saw the sign, which was on the west side of highway No. 45 and in the direction from which the train was approaching. The train was in full view of any one in the cab of the truck and looking to the west, at all times after the truck turned onto highway No. 45. The boy testified that, when he saw the sign, he turned and looked to the east; that he then turned and looked to the west, saw the train close by, and shouted "stop," but the truck was then within a few feet of, or right up to, the track and it was too late to stop; that he did not know they were to cross the track at this point until the truck started to turn onto highway No. 45; that he did not see or hear the train until he so looked to the west when the train was almost upon them.

The primary issues in the case, as to the defendant railway company, are whether it was negligent, and, if so, whether it thereby directly caused the accident, without the intervention of any other efficient, independent cause, so that its negligence was the proximate cause of the injury.

The statute of Wisconsin (St. Wis. 1927, § 192.27) provides that, when running a train over a traveled grade highway crossing, the whistle shall be blown when 80 rods from such crossing and the engine bell rung continuously from thence until such crossing is reached by the train. It further provides that slight want of ordinary care by a person injured shall not bar a recovery for injury or death caused by the negligent omission of the railway company to comply with the requirements of the statute. Plaintiff pleads and relies upon these provisions of the statute.

On the question whether the whistle was sounded, the evidence is practically conclusive that it was properly sounded. The engineer, fireman, and head brakeman, who were on the engine at the time, each testified that the bell was ringing. As against this, there is the testimony of the boy and his uncle in the truck that they did not hear either the bell or the whistle, or any sound from the train; and the testimony of a lady, who was in a car at or near the intersection of the two highways some 80 feet north of the railway track, that she heard no signals. She admits that she was not paying any attention to signals. Other witnesses were not asked by either party as to the ringing of the bell. That the boy and his uncle either were not paying any attention to trains or signals, or else disregarded what they heard and saw, seems apparent. The train was a long freight train of 55 cars and was making the usual rattle and noise of such a train. Assuming that the truck was going at the rate of 20 miles an hour and the train twice as fast, the train would have been not more than 200 feet from the crossing and in plain view as the truck turned from highway No. 10, and, as the truck was traveling the 100 feet from the turn to the crossing, the train was continuously approaching until the collision happened. Both the uncle and the boy appear to have wholly disregarded the known danger ahead of them until too late. They had been traveling east alongside the railroad right of way for some time, and the view in front of them to the east along the railroad track was unobstructed. Any train from that direction would have been in plain view as they turned onto highway No. 45. There was no apparent occasion or necessity for looking to the east after the turn was made. The natural and proper thing to do was to look to the west, from which direction a train might be approaching without their having seen it up to that time.

The burden of proof rested on the plaintiff to prove by a preponderance of the evidence that defendant railway was negligent, and that such negligence was the proximate cause of the accident. If the evidence was not sufficient to go to the jury on the issue of negligence, then the court should have directed a verdict on that ground, and its subsequent order for judgment was correct.

Upon the evidence here presented, a finding that proper signals by the whistle and bell were not given is difficult to sustain. Plachetko v. C., B. & Q. R. Co., 139 Minn. 278, 166 N. W. 338; Hollister v. Hines, 150 Minn. 185, 184 N. W. 856; Lawson v. M., St. P. & S. S. M. Ry. Co., 174 Minn. 404, 219 N. W. 554; Linden v. M., St. P. & S. S. M. Ry. Co., 156 Wis. 527, 143 N. W. 167. The value of negative testimony as to not hearing a whistle or bell depends upon the situation of the witness at the time, the surrounding circumstances, and the degree of attention he is giving to the matter. Where it is clear that the noise of a long freight train and the sounding of its whistle were clearly within the hearing of a person and he testifies that he heard nothing, his testimony must be accounted for either by lack of recollection or entire failure of attention to sounds. The decisions upon the question necessarily depend on the particular facts in each case, hence numerous cases are found which can be cited on either side. The case of Setosky v. Duluth, S. S. & A. Ry. Co., 173 Minn. 7, 216 N. W. 245, is relied upon by plaintiff. In that case two disinterested...

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