Keyes v. Minneapolis & St. L. Ry. Co.

• Decision Date: 22 December 1886
• Citation: 30 N.W. 888,36 Minn. 290
• Court: Minnesota Supreme Court
• Parties: KEYES v MINNEAPOLIS & ST. L. RY. CO.

36 Minn. 290

30 N.W. 888

KEYESvMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

December 22, 1886.

(Syllabus by the Court.)

Where a case has been tried by the parties, and submitted to the jury by the court without objection, upon a certain construction of the pleadings, such construction will be conclusive on the parties.

Under the statute (Gen. St. Minn. 1878, c. 13, § 37) a public highway can be vacated only by an order signed by the town supervisors, and until signed such order has no force or effect as an order.

In an action for personal injuries, the mental anguish or suffering which can be proven is only such as is endured by the plaintiff as the direct consequence of the personal injury to himself. Anxiety of mind about the safety of others who may be in danger of injury from the same cause cannot be considered. But held, in this case, that the admission of such evidence was error without prejudice.

In an action for injuries to a span of horses which rendered them unfit for use for a time, the owner may recover for the permanent diminution in the market value of the horses, and, in addition thereto, such expenses as he incurred in reasonable attempts to affect a cure, and also reasonable compensation for the loss of the use of the horses while under treatment, provided the whole damages do not exceed the original value of the property.

Appeal from district court, Rice county.

A. D. Keyes, for respondent, Keyes.

Baxter, Tawney & Gale, for appellant, Minneapolis & St. L. Ry. Co.

MITCHELL, J.

This was an action to recover damages for injuries sustained by plaintiff in his person and property, and caused by an obstruction (a barbed-wire fence) which it is alleged defendant unlawfully and negligently placed across a public road, and with which plaintiff collided while lawfully driving along such highway. It will be observed that the gist of plaintiff's cause of action against defendant is not mere negligence,-that is, negligently doing an otherwise lawful act,-but the doing of an act which it had no right to do at all; viz., obstructing a public highway. This eliminates from the consideration of the case many of the questions sought to be raised by the assignments of error; for, if defendant unlawfully placed an obstruction upon a highway, and plaintiff, while traveling upon it, and in the exercise of ordinary care, collided with this obstruction, and was thereby damaged, clearly the defendant would be liable.

Defendant makes the point that there is no evidence that the building of this fence was the act of the railway company. We think this was admitted by the pleadings. The complaint alleges expressly that it was built by the defendant. The answer admits that it was built by defendant's “section foreman,” and contains no allegation or suggestion that he had not authority, as its agent, to do so. On the contrary, the answer was evidently framed with the idea of admitting the building of the fence by defendant's agent, but justifying the act upon the ground that the highway had been vacated by the board of town supervisors, and another one laid out elsewhere as a substitute for it. The record shows that the case was tried throughout by both parties, and submitted by the court to the jury, upon this theory, and without any question being made or raised as to the act of the section foreman not being the act of the railway company; and, if there was any doubt as to the construction of the answer, this consideration must solve the doubt against the defendant. Neither do we think it would be any great stretch for a court to take judicial notice of the fact, known, we apprehend, to every one acquainted with the management and operation of railways, that the business of inspecting and keeping in repair the fences along the railway is within the usual and ordinary duties of the section foreman. See Brown v. Minneapolis & St. L. R. Co., 31 Minn. 553;S. C. 18 N. W. Rep. 834.

It was conceded that the locus in quo had been, up to within a very short time of this accident, and for 20 years preceding, a public highway, traveled and used as such, and was still a public highway unless vacated by the supervisors of the town. Under the statute this could only be done by an order signed by them. Gen. St. 1878, c. 13, § 37. It would be immaterial what proceedings might have been had with reference to vacating this highway, or even what conclusion the supervisors personally might have arrived at in their own minds, unless they had made an order. It is this order which is the efficient thing in either laying out or vacating a highway, and until such order is made no road is laid out or vacated, and there can be no order until it is signed by the supervisors. Without their signature the document is no more than blank paper. The order must be complete and sufficient on its face, and its defects cannot be helped out or supplied by parol.

In the case at bar the evidence shows conclusively that the supervisors never in fact signed any order. A mere reference by them, by way of recital in the award of damages, to another paper, which they never signed, as a “supervisor's order made by us,” is not enough. It follows that, this highway not having been vacated, the act of defendant in building this fence was an...