In re Hepfel V St. Paul, M. & M. Ry. Co.

• Decision Date: 07 April 1892
• Citation: 51 N.W. 1049,49 Minn. 263
• Parties: HEPFEL v ST. PAUL, M. & M. RY. CO.
• Court: Minnesota Supreme Court

49 Minn. 263

51 N.W. 1049

HEPFELvST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

April 7, 1892.

(Syllabus by the Court.)

1. A railway company is not ordinarily obliged to keep a lookout for trespassers, whether adults or children, on its cars or track, nor to presume that they will expose themselves to danger thereon; but, having notice of their presence, and that they are in danger, its servants controlling the movements of its cars or machinery are bound to use reaonable care to avert it.

2. A child between the ages of 7 and 14 years must be reasonably expected to exercise some degree of care, but the measure of it must depend upon his capacity and intelligence, and it is ordinarily a question for the jury.

3. Held, upon the case presented by the plaintiff on the trial, that the questions of the negligence of the defendant and the contributory negligence of plaintiff's intestate were for the jury.

Appeal from district court, Ramsey county; EGAN, Judge.

Action by Mary Hepfel, as administratrix, against the St. Paul, Minneapolis & Manitoba Railway Company, to recover damages for the death of the intestate, caused by defendant's alleged negligence. From a judgment for defendant, plaintiff appeals. Reversed.

Butts & Jaques, for appellant.

M. D. Grover, for respondent.

VANDERBURGH, J.

1. A railway company is not bound to keep a lookout for trespassers on its track or cars, nor to presume that they will expose themselves to danger thereon; but, having notice of their presence, and that they are liable to such danger, the company is bound to use reasonable care to avert it. Locke v. Railroad Co., 15 Minn. 355, (Gil. 283;)Scheffler v. Railway Co., 32 Minn. 520, 21 N. W. Rep. 711. In the case last cited, where a young child was run over upon the track, it was held that a railway company was not bound to keep watch for a trespasser on its track, but if, after seeing him, its servants controlling the movements of the train do not exercise proper care to avoid striking him, the company is liable for the consequences. So in Gunderson v. Elevator Co., 47 Minn. -, 49 N. W. Rep. 694, where the defendant's servant, after starting machinery in motion, left a young child exposed to danger therefrom in a power-house, it was held a breach of duty on the part of the defendant for which an action would lie for injuries suffered by the child. Such negligence is blameworthy, and condemned upon the plainest principles of humanity and justice, and is actionable, though the breach of duty is different in kind from that which is owed to passengers or servants of the company rightfully on its track or trains. In this case, therefore, the defendant corporation owed no duty other than we have mentioned to the plaintiff's intestate, who was injured while attempting to climb upon one of defendant's freight-cars on a side track in a lumber-yard. It was under no obligation to trespassers to regulate the distance of the lumber piles; so that the fact that the lumber was piled too near for the safety of one standing on the ladder of a box-car was not in itself to be deemed actionable negligence in this case. The only question for us to consider, of practical importance, in this case is whether the defendant is chargeable with neglect of its duty in the particular first mentioned in starting or failing to stop the car after notice of the child's exposure to danger in her attempt to climb upon it. The company was bound by the knowledge and conduct of its employes in charge of the train in the course of their employment. The evidence tended to prove the following facts: One of the defendant's side tracks in the city of St. Paul runs into a lumber-yard near which plaintiff's intestate, a girl of the age of 12 years, resided. On the day in question, while the defendant was engaged in switching cars there, the deceased, with other children, were playing...