Harris v. Minneapolis & St. L. Ry. Co.

• Decision Date: 15 June 1885
• Citation: 23 N.W. 850,33 Minn. 459
• Parties: HARRIS, ADM'S ETC., v MINNEAPOLIS & ST. L. RY. CO.
• Court: Minnesota Supreme Court

33 Minn. 459

23 N.W. 850

HARRIS, ADM'S ETC.,vMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

Filed June 15, 1885.

Appeal from an order of the district court, Le Sueur county.

Thomas Quinn, for respondent, Catharine Harris, Adm'x.

H. J. Peck, for appellant, Minneapolis & St. L. Ry. Co.

GILFILLAN, C. J.

Action for negligently causing the death of plaintiff's intestate, Patrick Harris. In February, 1883, at about half past 6 in the evening, he was driving a span of horses attached to a pair of bobs along a highway which crosses defendant's track at the village of Kilkenny, and as he came upon the track a train consisting of one engine and two cars, passing from north to south, struck and killed him. There was no evidence at the trial to indicate that those in charge of the train saw Harris in time to stop, or that they knew or had reason to suppose that any one was about to drive on the track. The train was at the time going at the rate of about 10 miles an hour; a very low rate for railway trains,-one that, unless under exceptional circumstances, would not be a negligent rate. An attempt was made by plaintiff to show a failure to give the usual signals of the train's approach. A witness, who was within 50 feet of the crossing, testified: “I did not hear any bell, but I heard a whistle after the train passed the crossing. I had not heard any whistle before that;” and on cross-examination: “I was lookingtowards the crossing, but not before the train got there. I do not know where I was when the train was north of the depot, (that was from 160 to 200 feet north of the crossing.) I was in the house, I suppose. I do not know where I was when the train was at the whistling-post north of the depot. I did not see the train as it came by the depot. I do not know where I was when the train was one hundred feet north of the crossing. I suppose I was in the house. I simply say I did not hear the bell ring.” And being asked, “Did not the whistle blow before it reached the crossing?” he answered: “I was not looking out before that. I will not swear it did not blow before that.” It not appearing that he would probably have heard the bell or whistle had they been sounded, his testimony that he did not hear either before the train reached the crossing is of no value whatever, and has no tendency to prove that they were not sounded.

On the other hand, a witness for defendant testified positively that the whistle was blown for the regular...