Howe v. Minneapolis, St. P. & S. Ste. M. Ry. Co., s. 9445 - (128).

• Decision Date: 10 July 1895
• Docket Number: Nos. 9445 - (128).,s. 9445 - (128).
• Citation: 62 Minn. 71
• Parties: CASSIUS C. M. HOWE v. MINNEAPOLIS, SAINT PAUL & SAULT SAINTE MARIE RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

62 Minn. 71

CASSIUS C. M. HOWE v. MINNEAPOLIS, SAINT PAUL & SAULT SAINTE MARIE RAILWAY COMPANY.¹

Nos. 9445 - (128).

Supreme Court of Minnesota.

July 10, 1895.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial. Affirmed.

At the trial, after the charge to the jury, defendant's counsel asked permission to take exception to the written portions of the charge, when he had examined the same, and the court replied, `Certainly, you can do so." Such leave was granted without the knowledge or consent of plaintiff or his counsel, who were present, but did not hear the same. After the jury had returned a verdict and the court had adjourned for the day, defendant's counsel dictated to the stenographer who had reported the charge certain exceptions thereto, which were, at the time of the settlement of the case, allowed and inserted over plaintiff's objections.

Alfred H. Bright, George B. Young, and M. B. Koon, for appellant.

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Welch & Welch and John W. Arctander, for respondent.

MITCHELL, J.

This was an action to recover for personal injuries sustained by plaintiff in a collision between a farm wagon, on which he was riding, coming from the north, and one of defendant's trains coming from the west. The collision occurred about 10 o'clock in the morning of December 29, 1892, at the crossing of the Osseo road with defendant's main line near Minneapolis. The trial resulted in a verdict for the plaintiff for $20,000, which the court, with plaintiff's consent, reduced to $14,500. This appeal is from an order denying defendant's motion for a new trial.

The negligence charged against the defendant was running its train at an unlawful and dangerous rate of speed and failing to give the required signals as it approached the crossing. It is not questioned but that the evidence was sufficient to justify the jury in finding that the defendant was guilty of negligence as alleged. Defendant's two contentions are (1) that the verdict is excessive, and (2) that it conclusively appears that the plaintiff himself was guilty of contributory negligence in failing to look and listen for trains as he approached the crossing.

1. The verdict, even as it now stands, is large, but it is clearly not so disproportionate to the nature and extent of plaintiff's injuries as to warrant us in setting it aside as excessive. Plaintiff was a young man, in his best years, and his injuries are both serious and permanent, leaving him badly maimed and deformed for life. Indeed, it would be no exaggeration to say that the evidence would justify the conclusion that he is practically a physical wreck.

2. On the occasion in question, the plaintiff was riding with one Pomeroy, who owned and was driving the team and wagon. Pomeroy had overtaken him on the highway, and invited him to ride. The vehicle was a farm wagon with a box or rack nearly three feet high. The team was a gentle one, and, in approaching the crossing, was traveling at the rate of about three miles an hour. Plaintiff had no control over the team, or over Pomeroy in its management. There was no relation of master and servant or of principal and agent between them, nor were they engaged in any joint enterprise. Plaintiff was simply taking a gratuitous ride upon the invitation of the owner and driver of the team. Pomeroy, who was driving, and a young man named Wentworth, sat on a spring seat, set on the bottom of the wagon box in the front left-hand corner, facing towards the west. Plaintiff, as they approached the crossing, was standing up near the center of the wagon on the right-hand side, and facing towards the team. The sight and hearing of all three were unimpaired. The road being bare of snow, the wagon made some noise, but not sufficient, as they testified, to interfere with their hearing. The morning was cold and frosty, with a light wind from the east. All three were familiar with the crossing, and plaintiff was aware of the fact that they were approaching it. There was no evidence that Pomeroy was not a competent driver. Neither was there any evidence that plaintiff knew or had reason to suppose that Pomeroy was not exercising proper care in looking and listening for approaching trains; certainly none that required a finding that he did. There were no exceptional circumstances that would have excused a traveler driving a team from looking for approaching trains. Neither did anything exceptional occur to divert the attention of one whose duty it would otherwise have been to look.

Plaintiff's testimony, which was the only direct evidence of what he did, was that he did look to the west for approaching trains when he was about 225 feet from the crossing; that, seeing none, he turned and looked to the east, and, seeing none in that direction, he again looked to the west when he was about 150 feet from the crossing; that, still seeing no train in that direction, he again looked to the east, when his attention was attracted to smoke, which he thought perhaps might come from a locomotive, but which proved to be from the smokestack of a factory near Camden Place; that, becoming satisfied that this was not from a train, he turned around to again look to the west when he was about 25 feet from the track, when he discovered the approaching train within from 100 to 150 feet of the crossing, and going at a rate of from 40 to 50 miles an hour; that just at this time the horses made a jump or "lunge" forward; that Pomeroy tried to check them, but could not; that he (plaintiff) made an effort to get hold of the lines, but failed, and in an instant the collision occurred, and the next thing he knew was when he regained consciousness in the hospital.

It is quite apparent from the evidence that the horses were the first to discover the approach of the train, and that neither of the three men in the wagon discovered it until it was almost on the crossing, and the horses within a few feet of the railroad track, when, in their fright, they sprang forward on the track, almost immediately in front of the engine. The highest rate of speed of the train testified to was from 40 to 50 miles an hour. The evidence consists largely of measurements and experiments made by the witness as to the distances at which a train coming from the west could be seen from different points on the highway by a traveler coming from the north; also, of photographs illustrative and explanatory of this evidence. It is impossible to state on paper, at least in any reasonable space, anything like the full probative force of the evidence. But a careful examination of it satisfies us that it amounts to a mathematical demonstration that had plaintiff, when at the distance of 150 feet from the crossing, looked west up the track for an approaching train, he would and must have seen the train, conceding that it was running at the highest rate of speed testified to; also, that the view westward up the track was unobstructed for so long a distance that if he had looked in this direction from any point within 150 feet of the crossing he would have seen the train. Hence, although he testifies that he did look at the distance of 150 feet, it must be considered as conclusively established that he did not look, at least with the vigilance required of one driving a team, notwithstanding the "fog and mist" attempted to be raised for the purpose of showing that he might have looked and not seen the train. Moreover, if he had been the driver of the team, even if he had looked at a distance of 150 feet, it would have been negligence for him not to look again, when, as in this case, there was nothing to prevent his doing so.

The evidence conclusively established negligence on the part of Pomeroy; and if the same kind and degree of negligence in "looking and listening" was required of plaintiff, in the exercise of reasonable care, as was required of Pomeroy, the driver, then plaintiff was, as a matter of law, guilty of contributory negligence, and the verdict cannot be sustained.

Defendant's contention is that the rule requiring a traveler on a highway, on approaching a railroad crossing, to "look and listen," so as to avoid danger from an approaching train, is, to its full extent, as applicable to one who is being carried in a vehicle owned and driven by another as it is to the driver, who has the control and management of the team, although the passenger has no control over the driver or the management of the team, and although no relation of principal or agent or master and servant exists between the two, so that the doctrine of respondeat superior would apply, or although they are not engaged in a joint enterprise, so as to create a mutual responsibility for the acts of each other. We do not think that this is, or, on principle, ought to be, the law.

Negligence means merely the want of ordinary or reasonable care according to circumstances. This court, in common with most courts, has held, as a matter of law, that reasonable care requires a traveler driving along a highway, when approaching a railroad crossing, to use his senses by looking and listening to discover and avoid danger from approaching trains. Under exceptional circumstances, there may be exceptions even to this rule. But the degree of care which an ordinarily prudent and cautious man usually exercises will depend somewhat upon the responsibility which is cast upon him. And it does not seem to us that, because reasonable care makes it the absolute duty of the person who has the control of the team and vehicle to look and listen, it necessarily follows that reasonable care imposes the same absolute duty upon one riding in the...