Kemp v. Northern Pacific Railway Company

• Decision Date: 24 April 1903
• Docket Number: 13,398 - (113)
• Parties: C.W. KEMP v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Minnesota Supreme Court

94 N.W. 439

89 Minn. 139

C.W. KEMP v. NORTHERN PACIFIC RAILWAY COMPANY

Nos. 13,398 - (113)

Supreme Court of Minnesota

April 24, 1903

Action in the district court for Morrison county to recover $2,000 for personal injuries. The case was tried before Searle, J and a jury, which rendered a verdict in favor of plaintiff for $625. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed, and judgment ordered for defendant.

SYLLABUS

Contributory Negligence.

In an action for injuries from collision with a train, received while driving over an alleged defective railway crossing held, that the condition of the crossing was not the proximate cause of the injury, but that respondent was guilty of contributory negligence, and appellant was entitled to judgment notwithstanding the verdict.

C. W. Bunn and James B. Kerr, for appellant.

J. N. True, for respondent.

OPINION

LEWIS, J.

Respondent is a farmer, residing about three miles southeast of the city of Little Falls, and on November 16, 1901, he started for the city with a load of hay weighing about a ton. He had occasion to cross appellant's railway tracks upon a highway, and while so doing the west-bound limited train struck the rear end of his wagon, upsetting the load, breaking the hayrack and wagon, releasing the horses, and to some extent injuring respondent. The charge of negligence against the railway company consists of three propositions: (1) That the train was run at a high and unusual rate of speed; (2) that the usual and customary signals were not given for that crossing; (3) that the crossing was in a defective condition, not in accordance with the statute, and by reason thereof respondent was delayed in crossing, and was struck by the train. The trial court instructed the jury that there was no evidence to charge appellant with negligence in respect to the speed of the train and in the giving of signals, but submitted to them the question of determining whether the crossing was defective, and if the accident occurred by reason of it. A verdict was returned for respondent in the sum of $625, and appellant moved for, and was denied, a new trial and judgment notwithstanding the verdict.

Respondent testified that he was sitting on top of the load of hay, and at a point about fifteen rods from the crossing he stopped to talk with an acquaintance, and, before proceeding, looked to the south for approaching trains, but saw none; that when within two rods of the crossing he again looked in the same direction, but saw no train, and thereupon drove upon the crossing, and, as the highway crossed at an angle, the right forewheel of his wagon slid along the rail to the left for a distance of nearly four feet, when it slipped over, and caught in the groove on the inside of the rail, the other wheel remaining on the outside in the gravel; that the wagon stuck there for...