Hollister v. Hines
| Decision Date | 28 October 1921 |
| Docket Number | No. 22387.,22387. |
| Citation | 150 Minn. 185,184 N.W. 856 |
| Parties | HOLLISTER v. HINES, Director General of the Federal Ry. Administration. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wadena County; J. A. Roeser, Judge.
Action by C. A. Hollister, administrator of Alice Hollister, deceased, against Walker D. Hines, Director General of the Federal Railway Administration, etc. Verdict for plaintiff, and the defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial, and from an order denying it, the defendant appeals. New trial granted.
Submitting to the jury a ground for recovery not justified by the evidence is reversible error.
Unless required by some statutory enactment, a railway company is not negligent in failing to provide gates or a flagman or other warning device at an ordinary crossing.
Whether the dangers at a peculiarly and unusually hazardous crossing are such that ordinary care requires it to be guarded in some such manner is a question for the jury.
The crossing in question was not unusually hazardous, and instructing the jury that they could find defendant negligent for failing to guard it by gates or a flagman or some other warning device was error.
The evidence will not sustain a finding that the usual warning signals for the crossing were not given, and submitting this issue to the jury was error.
There is evidence tending to show that the train was run over this crossing at an unlawful and unusual rate of speed, and whether defendant was negligent in this respect was a question for the jury.
The evidence does not show conclusively that the deceased was guilty of contributory negligence or engaged in a joint enterprise with the driver of the automobile, and these questions were for the jury.
The train had the right of way and the men operating it had the right to assume that the automobile would stop in time to avoid a collision, and the court should have given the charge to that effect requested by defendant. M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.
Byron R. Wilson, of Wadena, and M. J. Daly, of Perham, for respondent.
The public highway known as the Jefferson Highway crosses the Great Northern Railway track within the corporate limits of the village of Wadena, but south of the built-up portion of the village. Plaintiff with his family, consisting of his daughter Alice, 19 years of age, and three younger children, resided on a farm a few miles south of the village. A married daughter, Mrs. McCormick, with her babe, 8 months of age, was also at the farm on a visit. On August 23, 1919, Mrs. McCormick and Alice, taking the babe with them, drove to the village in plaintiff's automobile, a Dodge touring car. Shortly after 4 o'clock in the afternoon they started to return along the Jefferson Highway, Alice in the rear seat holding the babe and Mrs. McCormick in the front seat driving. At the crossing they were struck by a passenger train coming from the south and Alice and the babe were killed. Alleging that the accident resulted from the negligence of defendant, plaintiff, as administrator of the estate of Alice, brought this action for damages and recovered a verdict. Defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial and appealed from an order denying it.
Plaintiff claimed that defendant had been negligent in three particulars: First, in running the train over the crossing at an unlawful and unreasonable rate of speed; second, in failing to give the usual warning of the approach of the train by blowing the whistle and ringing the bell; and, third, in failing to maintain either gates, a flagman, or a gong at this crossing. The court submitted these three claims to the jury and instructed them to the effect that plaintiff was entitled to recover if they found that defendant had been negligent in any one of the three particulars specified, and did not find that Alice had been guilty of contributory negligence. Submitting to the jury a ground for recovery which is not justified by the evidence is reversible error; for the jury may have based their verdict on that ground. Dunnell Minn. Dig. and Supp. § 7174, and cases there cited.
[3] In Lawler v. M., St. P. & S. S. M. Ry. Co., 129 Minn. 506, 152 N. W. 882, it was held that the failure to provide gates or a flagman or a signal bell at the crossing of the principal street of a village of 700 people was an element to be taken into consideration in determining whether it was negligence to run a train over that crossing at a speed of 50 miles an hour.
In Zenner v. Great Northern Ry. Co., 135 Minn. 37, 159 N. W. 1087, it was held that the jury might find that ordinary care required ‘either crossing gates, or a flagman, or automatic bells, or some other warning device’ at the busiest crossing in a city of 10,000 inhabitants, but it was expressly stated that the question whether such precautions were required at country road crossings was not before the court.
In Gowan v. McAdoo, 143 Minn. 227, 173 N. W. 440, the accident occurred at a crossing in the village of Barnum over which all travel to or from the territory west of the village passed. Defective planking rendered the crossing dangerous, the view of a driver approaching it was obstructed, and a finding that the train was running at a rate of 60 miles an hour would have been justified. This court sustained the action of the trial court in submitting to the jury the question whether ordinary care required the maintenance of gates, a flagman, or a bell at this crossing, saying that whether the railway company ‘exercised the required degree of care in view of the location of the crossing, the conditions surrounding its maintenance, and the rate of speed at which trains were run over it was a question for the jury to pass upon.’
The court recognized that the crossing in each of these cases was peculiarly and unusually hazardous, and on that ground held that whether ordinary care required the maintenance of gates, a flagman, or some other warning device at the particular crossing was a question for the jury. It was not held, nor intended to be held, that this rule applied to crossings not extra hazardous.
The...
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