Kelly v. Southern Minn. R. Co.

• Decision Date: 02 July 1881
• Citation: 28 Minn. 98,9 N.W. 588
• Parties: KELLY v SOUTHERN MINN. R. CO.
• Court: Minnesota Supreme Court

28 Minn. 98

9 N.W. 588

KELLYvSOUTHERN MINN. R. CO.

Supreme Court of Minnesota.

Filed July 2, 1881.

Appeal from order of district court, county of Faribault.

M. W. Green, for respondent.

Benj. G. Reynolds, for appellant.

MITCHELL, J.

This is an action for damages for injuries to plaintiff's horse, caused by the alleged negligence of defendant in failing and neglecting to maintain and keep in a safe condition a crossing where defendant's railroad intersected a highway. The negligence complained of was that a plank which should have been kept fastened next to and along-side of the iron rail had been torn up and removed, thus leaving a space or hole between the surface of the highway and the railroad track into which the foot of plaintiff's horse was caught and injured while being driven on the highway over said crossing. The answer of defendant denies any negligence on its part, and alleges that the injury complained of was caused by the negligence of plaintiff himself.

The trial resulted in a verdict for the plaintiff. Defendant moved for a new trial on the ground of error in law occurring at the trial and duly excepted to, and that the verdict was not justified by the evidence and was contrary to law. The motion having been denied, defendant appeals. The first assignment of error is that the court, under defendant's objection, allowed certain witnesses for plaintiff to testify how the planks at these railroad crossings were usually laid. The objections made to this evidence were two: First, that the witnesses were not qualified to give an opinion on the subject, not having been shown to have any special experience in such matters; second, that evidence of what was usual in such cases was not competent. To the first objection it is sufficient to say that the witnesses were not being examined as experts, or called on to give an opinion, but to state a fact. Evidence as to the manner in which these plank were usually laid at such crossings was competent; the degree of care which was required of defendant in maintaining this crossing being that which men of ordinary prudence would usually exercise under like circumstances. Evidence as to the manner in which such crossings were usually constructed was competent, although, of course, not conclusive evidence against defendant on the question of negligence.

The next assignment of error is that the court permitted plaintiff, under defendant's objection, to inquire of another person how his horse's foot got caught at this crossing. It would have been competent for plaintiff to show that similar accidents occurred by reason of the same defect, as tending to show that the absence of this plank rendered the crossing unsafe. We think that the court had a right to presume that this was the purpose of the inquiry, no objection having been made to the question on account of its indefiniteness. The answer, however, disclosed the fact that the accident inquired of was produced by a different cause, and at a point in the crossing, about the condition of which there was no complaint. Upon the immateriality of the answer thus appearing, the defendant, if he deem it prejudicial to himself, ought to have moved to have it stricken out. It is further urged that the court erred in permitting plaintiff to show that after the accident defendant repaired the crossing by replacing the missing plank. Such evidence has been repeatedly held competent. Westchester R. Co. v. McElwee, 67 Pa. St. 311; O'Leary v. Mankato, 21 Minn. 65;Phelps v. Mankato, 23 Minn. 276.

Defendant also took exception to the ruling of the court admitting evidence tending to show that the locus in quo had been opened, worked, and traveled continuously for ten years as a highway. This was competent evidence tending to prove the existence of a highway by common-law dedication. But the evidence was admissible upon still another ground. Even if this was not a legal highway, yet if it was openly and notoriously used as such by the public, and the defendant recognized it as such by permitting the public to use it, and by assuming to maintain a crossing at that point, they would be bound to exercise precisely the same precautions to keep it in repair as if it was in fact a legal highway. Webb v. Portland & Kennebec R. Co. 57 Me. 117. The evidence disclosed the fact that plaintiff's servant was informed that the crossing was unsafe and out of repair before he drove across it. In view of this evidence defendant moved, when plaintiff rested, to dismiss the action because it appeared that plaintiff was...