Grethen v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 01 January 1884
• Citation: 22 F. 609
• Parties: GRETHEN, Adm'r, etc., v. CHICAGO, M. & ST. P. RY. CO. (Two Cases.) [1]
• Court: U.S. District Court — District of Minnesota

22 F. 609

GRETHEN, Adm'r, etc., v. CHICAGO, M. & ST. P. RY. CO. (Two Cases.) ^[1]

United States Circuit Court, D. Minnesota.

December Term, 1884

J. G Wooley, for plaintiff.

W. H Norris and Bigelow, Flandreau & Squires, for defendants.

NELSON J.

The motion in the case of Anton Grethen, Administrator of the Estates of Mary and Anna Thomley, against The Railroad Company, to instruct the jury to find for defendant, involves the question of contributory negligence on the part of the plaintiff's intestate, Mary Thomley. The plaintiff cannot recover if the negligence of Mrs. Thomley contributed to the death of herself and child. In considering the question presented, the view of the evidence most favorable to the plaintiff must be taken. The important facts proved are these: Mr. Thomley, who resided in the city of Minneapolis near the railroad operated by the defendant, started on the morning of the fifth or sixth of August, accompanied by his wife and two children, to go to the depot of a motor railway nearer the center of the city than his residence. Instead of taking the streets leading to their destination, they walked down the right of way of the defendant towards this motor-line depot. It seems that the public generally, with knowledge of the company, or, at least, without objection used these tracks, or the space between them, as a foot-path. The Thomley family had lived for a year or two near the defendant's railroad track, which ran in the rear of their residence, and were fully aware of the manner of operating the road, and presumed to know the danger of using the railroad track as a foot-path. There were four tracks leading north towards the heart of the city. While Mr. and Mrs. Thomley and their two children were walking on the track, one train passed up, which was avoided. They walked on, the father and one child ahead, and the mother following, the other child being a little in advance of her. When she and the child reached the Fourth street crossing, and were just on the street, both mother and child were struck and run over by a freight car that had made a running or flying switch, so called. This switch permitted the car, after being detached from the engine, to run over the crossing, and by means of it the detached car and engine came down on separate tracks. At this point the railroad company were grading for a fifth track, and had thrown up a small embankment running along the west side of the track from Fourth street south about 30 or 40 feet. The car was coming down the track across the street at a...