Hutchinson v. St. Paul, M. & M. Ry. Co.

• Decision Date: 13 October 1884
• Citation: 21 N.W. 212,32 Minn. 398
• Parties: HUTCHINSON, BY GUARDIAN AD LITEM, v ST. PAUL, M. & M. RY. CO.
• Court: Minnesota Supreme Court

32 Minn. 398

21 N.W. 212

HUTCHINSON, BY GUARDIAN AD LITEM,vST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

Filed October 13, 1884.

Appeal from an order of the district court, Otter Tail county.

Tyler & Lewis and Brown & Haupt, for respondent, Esther Hutchinson.

R. B. Galusha, for appellant, St. Paul, M. & M. Ry. Co.

VANDERBURGH, J.

That there is abundant evidence in the case tending to show negligence on the part of the defendant's servants in running the engine which came into collision with the vehicle in which plaintiff was riding, and caused the injury complained of, is not questioned. The defendant's chief contention is that the evidence also conclusively establishes contributory negligence on the part of the plaintiff. Whether the case should have been withdrawn from the jury for this cause is therefore the principal question for our consideration.

The accident occurred at the intersection of Summit avenue with the defendant's railroad track, in the city of Fergus Falls. The road runs south-easterly through that portion of the city, on a descending grade of 35 to 37 feet per mile, having a single track, and crossing Union avenue, Court street, Summit avenue, and Mill street diagonally, substantially as shown by the annexed diagram, and a portion of the way also running through a cut, which extends above Union avenue, where the track is bridged, down to within 50 feet of the center of Court street and about 200 feet from the place of the accident. Above Court street the ground rises and the cut deepens, the banks rising in some places to a height of 20 feet above the track. The wagon was driven by one Shuster, who had been employed to convey plaintiff, a young girl of 15 years, into the city. They entered the city by way of Court street, going north directly towards the railroad, of the line of which, except as obscured by the banks of the cut, they had an extended view; and the evidence shows that while approaching Summit avenue, which is crossed by Court street, they both looked and listened for the cars from the west. Turning east into Summit avenue, at about 100 feet from the crossing, they repeated the same precautions, and also, after advancing from 30 to 50 feet further towards the crossing,-the railroad being on their left, and intersecting the street at a sharp angle,-they again turned and looked up the road as far as Union-avenue bridge, where they saw school children on the bridge, but neither saw nor heard any indications of cars or engine. They had previously observed a switch-engine with steam up standing on the track below Mill street, which is parallel to and next east of Court street. It was, in fact, on a side track, but this they did not then know. Subsequent accurate measurements show that at a distance of 105 feet from the crossing the smoke-stack and cab of an engine could have been seen a distance of 320 feet, and 900 feet at a point 70 feet from the crossing. The parties did not again look westerly up the track (though listening for signals) till the horses reached the ptatform of the crossing,-a period of about 10 seconds,-when plaintiff suddenly discovered an engine from that direction moving rapidly upon them, without warning or noise indicating its approach, and too late to prevent a coliision. They testify that they had in the mean time been watching the engine in sight below them, and plaintiff's evidence also shows that the engine which caused the accident was also a switch-engine; that it was running backwards down grade, with steam shut off, at from 20 to 25 miles an hour; that the men in charge of it neglected to give signals of any kind of its approach, or to keep a lookout for danger at the crossings.

At whatever rate of speed it may have been moving, the engine was, doubtless, somewhere in the cut when the plaintiff last looked in that direction before reaching the crossing. But plaintiff and Shuster both deny that they saw it, and insist...