Haesley v. Winona & St. Peter Railroad Company

Decision Date26 May 1891
Citation48 N.W. 1023,46 Minn. 233
PartiesMarkus Haesley, Administrator, v. Winona & St. Peter Railroad Company
CourtMinnesota Supreme Court

Appeal by plaintiff, as administrator of his son, William Haesley (a child six years and four months old at the time of his death,) from an order of the district court for Winona county, Start, J., presiding, setting aside a verdict of $ 1,000 in his favor, and granting a new trial, in an action to recover $ 5,000 for alleged negligence of defendant causing the death of his intestate.

Order affirmed.

Berry & Moray and Gale & Brown, for appellant.

Wilson & Bowers, for respondent.

OPINION

Collins, J.

This was an action to recover damages from defendant corporation for personal injuries resulting in the death of plaintiff's intestate, said to have been caused by defendant's negligence. A verdict was had for plaintiff and the appeal is from an order setting it aside upon the ground that the evidence failed to establish such negligence. As concisely as possible, we will state the facts, about which there was practically no controversy. The plaintiff with his family, resided but a few blocks from the scene of the accident in the city of Winona. The deceased was his son, aged about six years. The defendant owned and operated a switch track, leading southerly from its main line of railway, 2,234 feet, to a manufacturing establishment, and there connecting with the switch track of another company. It was constructed in the year 1883, and it had been the common practice of the defendant to use it as a yard for temporarily storing cars, standing them, with brakes set in the usual manner, at all points along the track. For 400 feet southerly from the main line the switch track descended at the rate of 100 feet to the mile, and from there on it was upon a level, making what is called by railroad men a "gravity" yard, something quite desirable, in their opinion, as it measurably saves the handling of cars by a locomotive. The plaintiff made no claim upon the trial that defendant was negligent in constructing or maintaining its side track in this manner. The track ran along an open common much frequented by boys as a playground, and it was shown by the testimony that they would often mount cars standing upon this incline of 400 feet, unloosen the brakes, and ride as far as the cars would run. When the cars were on the level, some would push them back and forth, while others rode. It was also shown that trainmen in defendant's employ had frequently seen boys engaged in this kind of amusement, when trains were passing, and had motioned and shouted to them to desist. No accident had previously occurred, however.

On the day in question the defendant had placed one car upon the level at the foot of the incline, and two about a rod distant up the grade, the brakes being firmly set, as will hereafter appear. In the afternoon, in company with three boys older than himself, Willie Haesley, plaintiff's son, went over in the vicinity of the side track, his parents having no knowledge of his going, and, so far as was known, he had never gone there before. It is evident that he was not of sufficient age or discretion to be charged with contributory negligence, and the negligence of his parents on this occasion was a proper question for the jury. One of his comrades (Richards) was 15 years of age, Fort was aged 11, and the third somewhat younger. While Haesley remained on the ground near the single car, the others climbed upon the two standing up the grade a rod distant, Fort upon the car nearest to Haesley, and Richards on the one above. Haesley then said if they would loosen the brakes he would couple the cars as they came to the one near which he stood. Fort did his utmost to release the brake, but was unsuccessful, and Richards came to his assistance. By united effort -- Richards kicking the ratchet, which was set fast in the wheel -- they finally unloosened one brake, the cars descended by their own weight to the stationary one, catching young Haesley, who evidently was attempting to make the coupling, in such a manner as to cause his death almost immediately.

As was remarked by the trial court when...

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