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

• Decision Date: 28 May 1887
• Court: Minnesota Supreme Court
• Parties: HARRIS, ADM'X, v MINNEAPOLIS & ST. L. R. CO.

37 Minn. 47

33 N.W. 12

HARRIS, ADM'X,vMINNEAPOLIS & ST. L. R. CO.

Supreme Court of Minnesota.

May 28, 1887.

(Syllabus by the Court.)

Evidence considered as showing that the deceased (for whose killing by a locomotive at a railway crossing this action is brought) drove upon the crossing without being watchful to discover whether a train was approaching. Such negligence contributing to produce the accident, a recovery cannot be sustained.

Appeal from district court, Le Sueur county.

Thos. H. Quinn, for Harris, respondent.

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

DICKINSON, J.

Upon a former appeal in this action, a new trial was granted for the reason that the case did not show negligence on the part of the defendant which could be said to have caused the accident complained of. The case is reported in 33 Minn. 459,23 N. W. Rep. 850. The cause is now here upon the case shown at the second trial.

Upon a consideration of this case, we are of the opinion that, as respects the question of negligence of the defendant, there was sufficient evidence to sustain the verdict of the jury, if that were the only question in the case. We shall not, in this connection, refer to that evidence, as the decision must turn, as we think, upon the question of the contributory negligence of the deceased.

The accident occurred at a crossing of a public road over the defendant's track, in the village of Kilkenny. The railroad here runs north and south, in a straight line, the highway crossing it on an east and west line. The view of the track to the northward, as one approached the crossing from the west, would be obstructed by a large pile of ties north of the highway, and west of the railroad, so that he could not see an approaching train. These ties extended to within perhaps eight feet of the railroad track. The deceased crossed the track at this place very often, and must have been perfectly familiar with the situation. The accident occurred between 6 and 7 o'clock in the evening in the latter part of February, it having become pretty dark. It was snowing, and a westerly wind was blowing pretty hard. The train coming from the north was an irregular or “wild” train, consisting of engine, box car, and caboose. It approached the crossing at a speed differently estimated by two different witnesses at 10 or 12 and 20 or 25 miles an hour. We shall assume that no whistle was blown or bell rung. The head-light of the engine was burning. The deceased...