Gill v. Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Company

Decision Date19 March 1915
Docket Number19,096 - (286)
Citation151 N.W. 896,129 Minn. 142
PartiesEMMA GILL v. MINNEAPOLIS, ST. PAUL, ROCHESTER & DUBUQUE ELECTRIC TRACTION COMPANY
CourtMinnesota Supreme Court

Action in the district court for Dakota county by the administratrix of the estate of Thomas Gill, deceased, to recover $2,995 for the death of her intestate. The case was tried before Johnson, J., who denied defendant's motion to dismiss the action, and a jury which returned a verdict for $1,500. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Negligence toward trespasser after discovery of his peril.

1. 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.

Death by wrongful act.

2. 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, for appellant.

H. A Loughran, for respondent.

OPINION

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. 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, St. P. & S.S.M. Ry. Co. 103 Minn. 224, 114 N.W. 1123, and cases cited. Failure to exercise ordinary care under such circumstances is sometimes termed wilful or wanton negligence. This may be an unfortunate use of words. It is criticised 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. 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...

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