Howard v. St. Paul, Minneapolis & Manitoba Railway Company

• Decision Date: 12 June 1884
• Citation: 20 N.W. 93,32 Minn. 214
• Parties: Thomas Howard v. St. Paul, Minneapolis & Manitoba Railway Company
• Court: Minnesota Supreme Court

20 N.W. 93

32 Minn. 214

Thomas Howard v. St. Paul, Minneapolis & Manitoba Railway Company

Supreme Court of Minnesota

June 12, 1884

Plaintiff brought this action in the district court for Hennepin county, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in the management of its cars. The action was tried before Koon J., and a jury, and plaintiff had a general verdict for $ 8,000. Defendant appeals from an order refusing a new trial.

The accident by which plaintiff was injured occurred at about ten o'clock at night upon the crossing of defendant's railroad over Washington avenue, a well-travelled thoroughfare in the city of Minneapolis. From plaintiff's testimony it appears that he was passing along Washington avenue, and had already crossed two railroad tracks, avoiding a passing train on the first track, and was in the act of crossing the third track, when he was knocked down and run over by two freight cars which were being "kicked" across Washington avenue. Both of plaintiff's legs were cut off.

The five questions submitted to the jury, with their answers were as follows:

First. "Did the defendant have a flagman with a lantern on the street in question, and near the tracks, at the time of the accident in question?" Answer. "Yes. At the flag-house and on the side of the street."

Second. "Was defendant's servant, Kelly, with a lantern, on said street and near said tracks at the time in question?" Answer. "Yes. He was standing near the street car track."

Third. "Did the flagman or said Kelly call out to plaintiff and his companions, to notify them of their danger?" Answer. "Yes. At the moment the accident occurred."

Fourth. "Could plaintiff, if he had been looking out for them have heard the calls of the flagman and Kelly?" Answer. "We think not in time to have prevented the accident."

Fifth. "If the plaintiff had been vigilant and careful in looking out for the cars from the time he crossed the track of the St. Louis railroad until he reached the tracks of defendant, could he, either by sight or hearing, have discovered the approach of the cars in question in time to avoid collision with them?" Answer. "From all the surrounding circumstances we think not."

Order affirmed.

R. B. Galusha and Benton & Roberts, for appellant.

Wilson & Lawrence and H. C. Truesdale, for respondent.

OPINION

Gilfillan, C. J.

There is no inconsistency between the general verdict and the special findings of fact. When the manner of running the cars across the street by "kicking," and the situation of the tracks, had been explained to the jury, and...