Gill v. Minneapolis, St. P., R. & D. Elec. Traction Co., 19096[286].

• Court: Supreme Court of Minnesota (US)
• Citation: 129 Minn. 142,151 N.W. 896
• Decision Date: 19 March 1915
• Docket Number: No. 19096[286].,19096[286].
• Parties: GILL v. MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO.

129 Minn. 142

151 N.W. 896

GILL

v.MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO.

No. 19096[286].

Supreme Court of Minnesota.

March 19, 1915.

Appeal from District Court, Dakota County; Albert Johnson, Judge.

Action by Emma Gill, as administratrix of the estate of Thomas Gill, deceased, against the Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Company. Verdict for plaintiff. From denial of alternative motion for judgment or new trial, defendant appeals. Affirmed.

Syllabus by the Court

One who, after discovering another, though he be a trespasser, in a position of peril, fails to exercise ordinary care to avoid injuring him, and because of such failure injury results, is liable to the one injured.

Applying this rule, it is held that the evidence was sufficient to charge the defendant with liability for the death of plaintiff's intestate, a trespasser on its right of way, run into and killed by one of its trains. M. H. Boutelle and R. T. Boardman, both of Minneapolis, for appellant.

H. A. Loughran, of St. Paul, for respondent.

DIBELL, C.

Action by the plaintiff, administratrix of Thomas Gill, deceased, to recover damages caused by his death through the negligence of defendant. There was a verdict for the plaintiff. The defendant appeals from an order denying its alternative motion for judgment or a new trial.

[1] 1. It is the law of this state that one who, after discovering another, though he be a trespasser, in a position of peril, fails to exercise ordinary care to prevent the impending injury, and because of such failure injury results, is liable to the one injured. Anderson v. Minneapolis, etc., Ry. Co., 103 Minn. 224, 114 N. W. 1123, and cases cited. Failure to exercise ordinary care under such circumstances is sometimes termed willful or wanton negligence. This may be an unfortunate use of words. It is criticized in the dissenting opinion in the case cited. The jury need not find an intentional or malicious injury, or a reckless or wanton disregard of those in peril. Negligence, under the circumstances stated, gives a right of recovery. It should be understood that we are not speaking of a situation where there is concurrent negligence of both parties concerned in the accident at the time of the injury.

[2] 2. Applying this rule, it was a question for the jury whether the defendant was liable for the death of the deceased.

The defendant operates an electric railroad which runs north and south through the plaintiff's farm. The right of way is a private one and is fenced. An east and west public highway crosses the railroad 150 feet north of the plaintiff's house, and the house is 71 feet westerly of the right of way, which is 66 feet wide. The accident occurred 300 feet south of the highway.

On the day of his death plaintiff's intestate was on the east side of the right of way, driving a mother turkey and her brood from the east across the right of way to his home. He was a trespasser. He was quite deaf. The defendant's train was approaching from the north at a speed of 35 miles per hour on a track straight for a...